According to the Public Center for Sergey Duvanov's Defense, the Almaty regional court has not altered the verdict rendered by the Karasai regional court against Sergey Duvanov. The opposition journalist and personal adversary of Nursultan Nazarbayev has been sentenced to 3,5 years in jail on trumped-up charges of raping an underage girl.

At the beginning, the regional court hearing was open, but later all foreign observers - among them representatives of the US, Dutch Embassies, EU and western legal experts - were removed from the court room. This was done in spite of the promise given by Nursultan Nazarbayev and the Kazakh Foreign Ministry in public that the trial would be held in a transparent manner.

The observers in Almaty are convinced that the reason behind denying the monitors of access to the court room has been the report on the preceding trial of Sergey Duvanov made by the Dutch Embassy to Kazakhstan for the OSCE. The Netherlands currently performs the function of the OSCE Chairman-in-Office.

As if anticipating the illegal decision of the regional court in the Sergey Duvanov case, the authors wrote in their report a week before today's events: "An upholding of the verdict by the court of appeal, in blatant disregard of numerous procedural violations, dubious evidence, and clear signs of politically-motivated subversion and obstruction of justice, could therefore severely undermine confidence in the rule of law in Kazakhstan. Confidence in the rule of law can only be maintained by overturning the verdict, acquitting Duvanov, starting an investigation into wilful subversion of justice by the security organs, and punishing those responsible."

Unfortunately, confidence in the rule of law in Kazakhstan has long been lost in Kazakhstan. The Nazarbayev regime has shown its inherent inability to change reasonably at its discretion. Building the rule of law, freeing S. Duvanov (as well as M. Ablyazov and G. Zhakiyanov) and punishing of those who initiated and executed the provocations remain high-priority tasks that new democratic leaders will face in the future.

The Dutch Embassy report harshly criticizes both the trial, heavily influenced by the state and security bodies, and the police investigation. Moreover, western diplomats have registered and analyzed the testimonies of witnesses that prove beyond any doubt that the international community is dealing with a set-up against journalist Sergey Duvanov, which has been pre-planed and organized by the Kazakh security agencies.

The "victim" and her mother were intentionally moved to Almaty where they made use of contacts with Duvanov's neighbors specially arranged for them, and stayed at their places. Behind all those arrangements was colonel Dzhakishev, the deputy chief of a regional police department.

These and other pieces of evidence, collected by the monitors, irrefutably prove that the authorities have dealt with the opposition journalist Sergey Duvanov with the help of the police and judicial systems obedient to President Nazarbayev.

Summary of the monitor's conclusions is as follows:

1. The trial was fatally flawed, as the principle of presumption of innocence was violated from the start, and the judge showed strong bias by motivating his verdict on dubious evidence presented by the prosecution and ignoring serious questions and doubts raised about this evidence, even though the trial was held in an open and transparent manner. Furthermore, various procedural violations could be observed.

2. The accused' guilt has not been proven beyond reasonable doubt. Strong doubts remain over the evidence presented by the prosecution and testimonies given in court, which have not properly been taken into account by the judge in motivating his verdict.

3. The preliminary investigation by the police, including the examination of the forensic evidence, was marked by incompetence, numerous procedural violations, and prejudice.

4. There are strong indications of wilful subversion and manipulation by the security organs of the judicial process, raising serious concerns by the rule of law in Kazakhstan.

5. There can be little doubt of the political motivation of the trial.

The following is the full text of the Report on the Duvanov Trial prepared by the Netherlands Embassy to Kazakhstan for the OSCE member states, which has been sent to the European Parliament, EU European Commissions, Council of Europe, Parliamentary Assembly of the Council of Europe, and other international institutions.

REPORT ON THE DUVANOV TRIAL

Almaty, 24 December 2002 – 28 January 2003

by W. Slagter, Counsellor, Netherlands Embassy

Almaty, 06 March, 2003

1. Introduction

1.1 On 28 January 2003, Mr Sergei Duvanov, a well-known Kazakhstani human rights activist and independent journalist, was found guilty of rape by a court in Karasai, and sentenced to three and a half year of imprisonment. His trial, lasting from 24 December 2002 till 28 January 2003, was attended by international observers, including representatives of the U.S. Embassy, the OSCE Centre, and the Netherlands Embassy. The Netherlands Embassy attended the trial also on behalf of the EU embassies residing in Almaty and as representative of the OSCE Chairman-in-Office. The circumstances and timing of Mr Duvanov's arrest on 28 October on charges of raping an underage girl raised concerns that the arrest and subsequent trial were part of an orchestrated campaign against the independent media. The task of the EU observer was to ascertain whether Mr Duvanov got a fair trial in accordance with internationally accepted standards, and whether the trial was not politically motivated.

1.2 Mr Duvanov was charged with knowingly raping an underage girl, Kristina Sai, on the night of 27 October 2002 at his dacha in Kainar. As Mr Duvanov has maintained his innocence throughout the trial, claiming that he has been framed by the police for political reasons, and there are no witnesses of the alleged rape, the court sought to establish Mr Duvanov's guilt through examination of testimonies and evidence presented by the prosecution. The judge's sentence was in fact lower than demanded by the prosecution, who demanded seven years. The presiding judge motivated the lowering of the sentence by dismissing on technical grounds evidence presented by the prosecution purportedly proving that Mr Duvanov was aware of the alleged victim's age when raping her, thus making a different paragraph of the same article of the Criminal Code applicable. In the meantime, both Mr Duvanov and the alleged victim have appealed against the verdict, and the case will shortly be submitted to the provincial-level court of appeal.

2. Summary of findings

i) The trial was fatally flawed, as the principle of presumption of innocence was violated from the start, and the judge showed strong bias by motivating his verdict on dubious evidence presented by the prosecution and ignoring serious questions and doubts raised about this evidence, even though the trial was held in an open and transparant manner. Furthermore, various procedural violations could be observed.

ii) The accused' guilt has not been proven beyond reasonable doubt. Strong doubts remain over the evidence presented by the prosecution and testimonies given in court, which have not properly been taken into account by the judge in motivating his verdict.

iii) The preliminary investigation by the police, including the examination of the forensic evidence, was marked by incompetence, numerous procedural violations, and prejudice.

iv) There are strong indications of wilful subversion and manipulation by the security organs of the judicial process, raising serious concerns by the rule of law in Kazakhstan.

v) There can be little doubt of the political motivation of the trial.

These observations will be substantiated in the present report. It should be emphasized that the observations in this report are based solely on information obtained in the trial, and not on outside sources, except in a few isolated instances. Chapter 3 will describe the political background, against which the trial took place. Chapter 4 will show that the alleged victim's testimony is wholly uncredible, by analyzing the inconsistencies, contradictions and implausibilities in her testimony. Chapter 5 will describe the shortcomings of the preliminary investigation. Chapter 6 will describe the pattern of subversion and manipulation of the judicial process by the security organs, for which indications have emerged in the course of the trial. Chapter 7 will focus on the shortcomings of the trial itself.

3. Context

3.1 The arrest of Duvanov on 28 October 2002 took place against a background of mounting attacks in the past year against the independent media in Kazakhstan, including several attacks against Duvanov personally. These attacks included destruction and closure of an independent TV station "TAN TV", robbery in the offices of the independent newspaper "Soldat", a bomb attack on the offices of the newspaper "Delovoye Obozreiye Respublika", the death while in police detention under mysterious circumstances of the daughter of the editor of the newspaper "Respublika 2000", and a murder attempt on a journalist of the newspaper "Soldat". In August 2002, Duvanov himself was severely beaten up by unknown persons, who were never caught by the police.

3.2 Duvanov is one of Kazakhstan's foremost and most respected independent journalists. His independent stance dates back to the time of the Soviet Union, when his critical attitude frequently landed him into trouble with the Soviet authorities. He lately worked as editor of the bulletin of Kazakhstan Human Rights Bureau. In the past year, he has written several critical articles about President Nazarbayev, alleging that he was involved in corrupt practices. He thus earned the enmity of the authorities and of President Nazarbayev personally, frequently facing harassment by the authorities.

3.3 In July 2002, Duvanov met with a representative of the international NGO Reporters without Borders, with whom he spoke of the intimidation and legal harassment he faced by the authorities. At the time, he told the representative that the authorities would probably try to implicate him in a sex or drugs scandal in order to discredit him.

3.4 In September 2002, Duvanov was charged with "insulting the honor and dignity of the President", a criminal offense, because of some critical articles he wrote about corrupt practices of President Nazarbayev. The case against Duvanov was subsequently quietly dropped, officially because according to a philology expert called as an expert witness the language used by Duvanov in his articles was not "abusive". In the trial, Duvanov himself claimed that the real reason for dropping the case was that it was feared that he might reveal the sources of his allegations against President Nazarbayev in court. The rather far-fetched argument for dropping the case does indeed suggest that at the time it was considered politically not expedient to pursue the case.

3.5 On the evening of the day of the arrest, the Almaty police called a press conference to announce the arrest of Duvanov on charges of rape. At the press conference, journalists were given a press release, as well as by mistake a copy of an internal instruction to the police on how to deal with the press. Both documents were copies of fax messages. The fax number on top of the messages turned out to be the fax number of the Presidential Administration, moreover showing a time of receipt at the Almaty Police Department before the actual arrest had taken place. In court, the officer who had received the fax messages explained that the fax messages had been sent by an official of the Ministry of Internal Affairs in Astana. As the fax machine at the Ministry of Internal Affairs had broken down, he went to the Presidential Administration, which he said was located nearby. The fact that the faxed text showed a time of receipt well over one hour before the actual arrest was explained by a probable technical failure of the fax machine. In fact, the Ministry of Internal Affairs is located at the other end of the town, quite far from the Presidential Administration. Moreover, the Presidential Administration is a heavily guarded building with strict security procedures, and it is unlikely that a lower-ranking official of the Ministry of Internal Affairs would gain admission into the building just to use a fax machine for a routine job. The explanation given in court on why the text was faxed from the Presidential Administration is therefore wholly unsatisfactory. The fact that the text of the press release originated from the Presidential Administration does suggest a direct link between the Presidential Administrating and the ensuing police investigation (see also § 6.2).

3.6 Immediately after the arrest, the international community voiced concerns over the political motivation of the trial against Duvanov, in view of the circumstances and timing of the arrest. During his trip to Europe in November 2002, President Nazarbayev was faced with serious questions about the case both in the Netherlands, where he paid an official visit, and in Brussels, where he met EU Commission President Prodi. The issue was discussed in a meeting between the Netherlands Foreign Minister Jaap de Hoop Scheffer and Kazakh Foreign Minister Tokayev in the framework of the President's visit to the Netherlands, in which Minister Tokayev showed himself to be receptive to the suggestion of international observers attending the trial in the framework of OSCE, in order to allay doubts about possible political motivation and fairness of the trial. The attendance of the observer of the Netherlands Embassy at the trial is a direct result of this meeting.

3.7 Since the arrest, the President has gone on record as publicly declaring Mr Duvanov guilty, inter alia in a press conference in Brussels after meeting EU Commission President Prodi, before the trial had even begun. This is a clear form of political interference in the judicial process, violating the presumption of innocence which is a cornerstone of due judicial process, and thus effectively sealing his fate.

3.8 The political nature of the prosecution's case against Duvanov is reflected in the composition of the legal team counseling the victim. Chief legal counsellor of the alleged victim was Mr Erik Nurshin, a lawyer, journalist and editor of "Dozhivem do Ponyedyelnika", a sensationalist pro-government newspaper known for virulent attacks against opposition critics, and reportedly financed by the security apparatus. Assistant counsellor was Mr Martinovsky, a lawyer known for his close ties with the security apparatus and himself a former police officer. In the course of the trial, Duvanov was reviled in "Dozhivem do Ponyedyelnika", Mr Nurshin's newspaper, as "rapist of the year", a form of character assassination as well as an attempt to pressure the court, in violation of the presumption of innocence.

3.9 After the verdict was announced, the President's daughter Dariga Nazarbayeva, who is chairwoman of Kazakhstan most important TV station, has gone on record as saying that the trial against Duvanov seemed to be seriously flawed, and defending Duvanov's right to criticize the President. While Mrs Nazarbayeva's remarks defending the freedom of the press are to be applauded, it should be recalled that similar remarks were made by her in connection to the trials against two former politicians, Zhakiyanov and Ablyazov, which were widely seen as politically motivated, without any noticeable effect on their outcome.

4. Analysis of testimonies

4.1 The testimonies given by the alleged victim and her mother in court have been found contradictory and inconsistent with other testimonies and known facts on so many points, that they cannot been considered credible. Moreover, accounts of the alleged victim's behaviour just before and after the supposed rape as stated by various witnesses as well as contradictions in the alleged victim's own account of the supposed rape cast serious doubts over her claim that she was the victim of a rape. In order to substantiate this observation, a detailed analysis of the inconsistencies, contradictions, and implausibilities of the alleged victim's testimony on the events leading up to, including, and following the alleged rape as given in court is given below.

4.2 The alleged victim, Kristina Sai, and her mother Irina Sai,come from the city of Karaganda, a depressed industrial town with high rates of unemployment in the centre of Kazakhstan, where they lived together in an apartment with Kristina's younger sister (born May 2002). For the past five years, Irina has been unemployed, supported by her family. In the past, Irina has been in prison for 3 years for robbery (before Kristina's birth), as well as for a short while for hooliganism, the last fact denied by both Irina and Kristina in court. Kristina and Irina gave conflicting statements about Kristina's father's death, with Kristina saying that he died in 2000, and Irina saying that he died in 2002, ignoring her daughter when she corrected her in court. Later she retracted her earlier statement, confirming her daughter's statement that her husband died in 2000, adding however that she had completely lost track of him after he moved to Ukraine, thus adding confusion over Kristina's father's death.

4.3 Despite having reached the age of 14, Kristina has got no further than the 5th grade at school (should be 9th grade). According to Irina, severe health problems prevented her from attending school for a long time, although no medical records were produced, while the health problems cited by her (broken leg, kidney problems) are not sufficient grounds for absence from school for several years. According to former schoolmates of Kristina, whose videotaped testimony was shown in court, she was known to have been engaged in prostitution, and having lived for a while together with a drugs trader called Yakov Fedorovich, currently on the run for the police. They furthermore stated that Kristina disappeared completely from sight for a couple of months, just prior to the birth of her little sister, while they did see Irina at the same time without showing signs of pregnancy, suspecting that Kristina is actually the mother of the baby, not Irina. Kristina's parenthood was actually confirmed by Irina in court, when she in a slip of the tongue referred to Kristina as her only daughter. Kristina's relationship with Yakov Fedorovich is confirmed by other independent sources in Karaganda who have been interviewed by the defense. Kristina and her mother however both denied in court knowing or ever having met Yakov Fedorovich.

4.4 The medical examination of Kristina revealed that she had already lost her virginity some time before the alleged rape. Kristina herself maintained in court that she had never had sexual intercourse before the rape, and had lost her virginity as a result of wrong use of tampons due to inexperience, an explanation actually first given by Irina to the police in the preliminary investigation. Although an expert witness confirmed in court that it is technically possible to lose virginity as a result of wrong use of tampons, the explanation given by Kristina in court for the way in which wrong use of tampons had caused her to lose virginity was highly implausible and contradictory. When asked why she didn't inform her daughter on the proper use of tampons when she started to have menstruations, Irina stated that she had never bothered to inform her daughter on the facts of life, and that she didn't know how her daughter dealt with it - forgetting that she had earlier given herself the explanation about the tampons to the police.

4.5 In August 2000, Kristina's family decided to move from Karaganda to Almaty, apparently out of concerns for the health of the new-born baby. They sold their apartment in Karaganda to Irina's sister for the amount of US$ 5000, taking an advance payment of US$ 2000. They subsequently took a bus to Almaty, trying to look for a place to live there, without having made any prior arrangements. In fact, it was shown in court that the going market price for apartments in Karaganda is not more than US$ 500, only a tenth of the amount for which the apartment reportedly had been sold. It was moreover shown that the apartment had been registered in the name of Irina's brother, currently living with her parents in Russia, so that she couldn't have sold the apartment in the first place. The explanation given by Irina was that all financial arrangements regarding the sale of the apartment were settled within the family, leaving aside the need to have the transaction legally registered. This explanation still left the question about the excessively high sales price unanswered. Since Irina's sister refused to testify in court, nor was forced to do so by the court, the exact arrangements and circumstances of the sale of the family's apartment were not further clarified.

4.6 Irina and Kristina cited health concerns for the new-born baby as the reason for moving to Almaty, as Almaty has a milder climate than Karaganda. They claimed that they did not have any relatives, friends, or acquaintances in Almaty, although Irina's sister stated in her written testimony that they did have a relative living in Almaty. Why they, not having a regular income and living off support by the family, had chosen to move to Almaty, by far the most expensive town of Kazakhstan, where (by their own account) they didn't know anyone, and not to another place in the southern part of Kazakhstan offering similar or even better climatic conditions at considerably lower costs, remained unexplained. Moreover, Almaty has severe air pollution problems, which could affect the health of small children. In interviews given to the press after the verdict, Irina claimed that the baby suffered from asthma, a fact not mentioned in court. After having settled in Almaty, the baby was never taken to see a doctor for a medical check-up before 8 November (i.e. well after the alleged rape). Why they took all the trouble to move from Karaganda to Almaty ostensibly out of concern for the baby's health, without bothering to see a doctor for several months once settled in Almaty, remained unexplained. Serious doubts therefore remain about both the financing and the real motives for the family's move from Karaganda to Almaty.

4.7 Upon their arrival in Almaty at the central bus station, they were met by a Mr Cherkassov, Duvanov's neighbour, living in the village of Kainar, who offered them to stay in his home. Cherkassov is an ex-convict, who had spent some time in jail for drugs offences. He is now living in Kainar, next to Duvanov's house, together with his wife Saule, son, and daughter Tatyana, working as a heating repairman. The exact circumstances of the first meeting between Mr Cherkassov and Kristina's family at the Almaty bus station and the reasons for offering to host them at his home in Kainar remain unclear, as contradictory testimonies exist. In the preliminary investigation Cherkassov first told the police that he was asked by a former jailmate, a friend of Irina's husband, to host Irina and her family. Later he told the police that he knew Irina's husband from jail, who had asked him himself to host his family, as he was being transferred to a jail near Almaty, so he wanted to have his family in the vicinity. Then he told the police that they had been introduced by a client of his. In court, however, he maintained that it was an accidental meeting, and that he hadn't known them at all. According to Cherkassov, he had just been looking at the bus station for other people going to Kainar to share a taxi, when he met Irina and her family. In Kazakhstan, people usually try to share a taxi going the same direction, in order to share costs. Asking them whether they were going to Kainar, Irina replied that they were unfamiliar with Almaty, and were looking for a place to live in or around Almaty. Upon learning that they came from Karaganda, where Cherkassov had lived himself for 10 years, he then immediately offered them to stay at his home. Irina, from her part, told the police during the preliminary investigation that she didn't remember the circumstances of her first meeting with Cherkassov, but later in court she confirmed Cherkassov's latest version that it was an accidental meeting. Asked why he gave conflicting testimonies about his first encounter with the Sai family, Cherkassov replied that he didn't want to have problems with his wife, who is of a suspicious and jealous nature. The explanation given by both Cherkassov and Irina that they met accidentally is however not very credible, as it is questionable that someone would agree on the spot to take in two complete strangers with a small baby at home for an extended period.

4.8 According to one witness, Cherkassov had been arrested in the fall in 2001 for drugs-related offences, and sentenced to a long term in prison, but then was unexpectedly early released in May 2002. She also testified that before his arrest in fall 2001, Cherkassov's home had been a meeting point for drugs traders and addicts, but that after his unexpected release in May 2002 she noticed that Cherkassov was frequently visited by well-dressed people driving expensive cars, a wholly different bunch of visitors than who used to frequent Cherkassov's home in the past. This would suggest a link between Cherkassov's early release and his cooperation in hosting the Sai family (see also § 6.4).

4.9 The Sai family stayed at Cherkassov's for two weeks, when they were expelled by Cherkassov's wife Saule, who had developed a strong antipathy towards Irina, possibly also sensing that the Sai family's stay at their home would land them into trouble. As Cherkassov assumed Kristina to be 17-18 years of age, he was not surprised by the fact that Kristina didn't go to school during their stay. According to Cherkassov's daughter Tatyana, who is 14, Kristina had told her that she was 18. According to Tatyana (as reported by several witnesses who have spoken to Tatyana), during their stay at Cherkassov's, Kristina showed a peculiar interest in Duvanov, whom she didn't know nor had met, asking questions about him, observing his house, surveing the surroundings. This could however not be confirmed by Tatyana herself, as both Tatyana and Saule have disappeared during the course of the trial and refused to testify in court, nor were forced to do so by court, so their version of the events can only be deduced from their written testimonies read in court and remarks made to other witnesses reported in court. Their absence from court can actually be considered a major omission, as their testimonies are of crucial importance to an understanding of the events surrounding the alleged rape (see also § 6.5).

4.10 After their departure from Cherkassov's around the middle of September, the Sai family found lodging in the house of Dyorin, a retired police employee living in Chemolgan near Kainar. Conflicting statements were made in court about how they were introduced to Dyorin. Kristina stated in court that she didn't remember how they got from Kainar to Chemolgan. According to Irina's testimony, they were referred to Dyorin by some old women in a store in Chemolgan, where they had gone using a fixed-route taxi at the suggestion of Saule. According to Dyorin's testimony, he was approached at the time by two unknown men, asking him to host the Sai family, saying they were important police witnesses, and paying him KZT 2000 for their stay. It should be borne in mind that this request was made more than a month before the alleged rape took place. In fact, according to several witnesses who have spoken to Dyorin, one of the men asking Dyorin to host the Sai family was Dzhakishev, a Deputy Chief of police at Kainar, although Dyorin was unwilling to identify him in court. The Sai family stayed with Dyorin until around the beginning of October (see also § 6.6).

4.11 After their stay with Dyorin, the Sai family found an apartment in Almaty, which according to Irina's testimony they rented for about a month at KZT 1700 per day. Amounting to US$ 350 per month, this is an excessive high rent for such an apartment by local standards. It should be borne in mind that in Almaty paying rent on a daily basis is highly uneconomical and unusual, unless only a short stay of a few days or less is envisaged. As the Sai family were, by their own account, looking for a permanent place to stay and were moreover supposedly on a tight budget, it is questionable why they agreed to such an unfavorable deal. In court, Irina furthermore claimed that the US$ 5000 which she had received from the sale of her apartment in Karaganda and which she had intended to use to buy an apartment in Almaty, had already been spent in the meantime, although she later retracted that statement, declining however to give further details. Serious questions therefore remain over the financing of the Sai family's stay in Almaty.

4.12 Both Irina and Kristina had mobile phones during their stay in Almaty, but conflicting statements were made about their purchase. In the preliminary investigation, Irina told the police that she had bought Kristina's mobile phone from an unknown person of Asian descent at the Almaty Railway Station, and her own mobile phone from an unknown person of European descent at Zangar. In court, she said that Kristina's mobile phone had been bought near Zangar, and her own mobile phone in a kiosk at a bus station. It should be borne in mind that in Almaty mobile phones are very easy to obtain in shops and kiosks at low prices, and it is highly unusual and unnecessary to buy mobile phones from unknown persons on the street. Besides, at a price of at least US$ 50 a piece plus high mobile connection costs, mobile phones are absolutely unaffordable for people with low income. The conflicting statements about their purchase and the high costs by local standards raise the question of who actually supplied them with mobile phones during their stay in Almaty.

4.13 Although they had been expelled from Cherkassov's home by Saule, Kristina remained on friendly terms with Tatyana, still occasionally visiting the Cherkassovs. On 25 or 26 October she went to the Cherkassov's, to stay with them for a few days and spend some holidays. On 26 October, Cherkassov was working at Duvanov's house, helping him with repairing the radiators. According to Tatyana (as reported by witnesses who have spoken to her), Kristina had seemed to be very eager for the whole day, to her amazement, to enter Duvanov's house and get near to Duvanov, always looking for an excuse to enter Duvanov's house, despite being urged repeatedly by Saule to return home. She even told Tatyana on that day cryptically: "You'll see what I will do to him". Kristina helped them by cooking lunch, and painting the radiators, while Duvanov struck up a conversation with Kristina. Kristina stayed at Duvanov's house for most of the day, together with Duvanov and Cherkassov and some other repairmen, while her friend Tatyana stayed at home.

4.14 Different accounts exist of the conversation between Duvanov and Kristina on that occasion, especially whether her age was mentioned. According to Kristina, she had told Duvanov on that occasion that she was 14. At her request, Duvanov promised to help her get into model school, as she wanted to become a model, using his connections. Duvanov then asked her to write down her biographical details, which she did. The paper on which she had written her biographical data was later found during a police search, and was used to prove that Duvanov was aware of Kristina's age when he raped her. According to Duvanov, however, Kristina had told him that she was 18, while Cherkassov, who had been present all the time, does not recall that her age was mentioned in the conversation. It should be pointed out that Kristina when wearing make-up (which she did at the time) looks quite mature for her age, and can easily pass for an 18-year old. Cherkassov stated furthermore that it was was he, not Kristina, who had asked Duvanov if he could help Kristina to find a job, upon which Duvanov replied that he could not help her. Finally, there are strong indications that the paper with Kristina's biographical data was planted later, in order to aggravate the charges brought against Duvanov, which will be explained below (see also § 5.9).

4.15 In the evening, after finishing the repair work of the radiator, Duvanov invited the whole Cherkassov family to use his banya (Russian sauna), which is in a separate small building outside the house in the garden, a form of Russian hospitality. Kristina went back to the Cherkassov's home to change her clothes, returning dressed in a bathrobe over her underwear. Saule and her son first used the banya, then Kristina, followed by Cherkassov. Tatyana didn't use the banya. After using the banya, Cherkassov wanted to go over to Duvanov's home for a drink, but was held back by the dog in the garden. He then decided to go home directly, seeing Kristina and Tatyana still with Duvanov. Saule had already returned home in the meantime. After having returned home, Cherkassov went to bed and fell asleep. Kristina and Tatyana helped Duvanov tidying up some books in his study, and then were offered some drinks by Duvanov, while they listened to music. Around midnight, Tatyana went home, leaving Kristina alone with Duvanov. According to Kristina, Tatyana went to the kitchen to get another glass of Fanta, but never returned. According to Tatyana (as reported by several witnesses who have spoken to her), Kristina urged her to go home alone, saying "You go, you're too young for this, I still have some business to do here."

4.16 Kristina was now alone with Duvanov in his house, with no other witnesses present. According to Kristina, on that moment Duvanov asked Kristina to give him a massage, which she did. When she wanted to leave and went towards the door, Duvanov closed and locked the door, grabbed her, threw her on the couch on the couch and raped her. She was screaming, crying, and trying to push him away, saying that she would tell her mother, upon which he said "You just try". After being raped, she got dressed, and left. According to Duvanov, after Tatyana had left, he tried to make Kristina leave in a polite way, as traditions of Russian hospitality prevent him from sending guests away directly, but despite his urgings she stayed on. He went to the banya again, for about 20-30 minutes, hoping that she would leave in the meantime on her own accord. When he came back, Kristina was still there, having poured in a new glass of wine for him (it was empty when he went to the banya), which he drank. She came up to him and tried to give him a massage, pressing against him, but he declined. At this moment. he spilled some of the wine in his glass, wiping it off with a towel hanging on the wall. Then he sat in front of the TV, and suddenly felt very sleepy, not noticing how he fell asleep. He suspects that some sedative drug was added to his wine, and that DNA material was taken from him while lying unconscious, used to taint his and Kristina's clothes and the couch. He woke up more than an hour later in a very uncomfortable position, his neck hurting, and his shorts undone (upper button) and pulled down. (He wore only shorts at the time, revealing in court that he didn't wear underwear at the time, although during the investigation he had told the police, after consultation with his lawyer, that he did wear underwear, in order to test the police's reaction. Sure enough, later sperm stains were found on his underwear.) He was very sleepy. Kristina was gone, the door was open. He washed the glasses, set the clock for the right time and went upstairs to sleep.

4.17 Kristina gave conflicting statements on details of the alleged rape. To the police, Kristina had told that Duvanov had taken off her underwear only half-way, while in court she stated that Duvanov had taken it off completely. According to Irina, Kristina's underwear was wet and covered with sperm stains when she came home some hours later, which would contradict Kristina's statement in court that her underwear had been taken off completely by Duvanov and thrown on the floor. Furthermore, to the police, Kristina told that Duvanov was wearing his shirt while raping her, while in court she stated that he did not wear a shirt during the rape, only putting it on after the rape. Finally, according to Duvanov, he could not have locked the door, as claimed by Kristina, as it was broken and could not be locked from the inside. This detail, however, was never checked by the police.

4.18 Kristina, in the meantime, first went back to Cherkassov's home, in order to collect her clothes before going to her mother in Almaty. There she met Saule and Tatyana, who were still awake. According to Tatyana (as reported by other witnesses who have spoken to her), Kristina didn't look upset at all when she came back from Duvanov, actually in a rather good mood. At Cherkassov's, she put her clothes in a bag, putting on only a jacket over her bathrobe, and set off for Almaty. Asked why she hadn't changed clothes before going back in the middle of the night to Almaty, she replied in court that she hadn't wanted to put on dirty clothes over a clean body – after a supposed rape and wearing only a bathrobe supposedly covered with sperm stains.

4.19 Kristina gave conflicting statements about her return to Almaty by taxi. In the preliminary investigation, she told the police that after she left Duvanov's house in shock, not knowing what to do, she went to the house of a friend and neighbour of Cherkassov called "Naryman", asking him to take her back to Almaty. Naryman took his car out of the garage, and took her back to Almaty. In court, however, she stated that after she left the Cherkassov's, she started walking back to Almaty (about 25 km) in the middle of the night. While she was walking on the street, she was picked up by a car in which two men were sitting. Both men have been identified as Baiseitov, the driver, and a friend of his, Adilbekov. Baiseitov, one of Cherkassov's neighbours, recognized her as Cherkassov's guest, and they took her to Almaty. They both confirmed in court the second version of Kristina given in court. The different names of the drivers in the two versions was explained by Kristina by saying that Naryman was a Kazakh nickname. Kristina could not give an explanation for the conflicting statements about how she got into the taxi in the first place. According to Adilbekov, Kristina was in a rather bad mood in the car and unwilling to talk, but she did not appear to be in shock or traumatized, nor did she cry. There are furthermore conflicting statements about calls made by Kristina to her mother from her mobile telephone. Telephone records of the mobile phone operator of calls made on her mobile phone do not correspond to the times and the number of times given in her statement to the police. Finally, according to Baiseitov's wife (as reported by a witness who had spoken to her), Kristina was met in Almaty by Dzhakishev, the police colonel who had asked Dyorin to host the Sai family (see § 4.10), before she went to her mother. In court, both Baiseitov and Dzhakishev denied that such a meeting had taken place, while Baiseitov's wife denied in court ever having spoken to or having met the witness who reported on her conversation with her. There are, however, indications that both Baiseitov and his wife gave false testimony in court under police pressure, which will be further explained below (see also § 6.7).

4.20 Upon returning home, Kristina told her mother everything that (supposedly) had happened, whereupon they decided to report to the police. Instead of calling the police, they went out to look for a police officer on the street. Kristina and her mother gave conflicting statements about why they decided to go out to look for a police officer on the street, instead of calling the emergency number of the police. According to Kristina, they didn't know that the emergency number of the police (02) was valid in Almaty, assuming that the emergency number they knew was only valid for Karaganda. In fact, it is general knowledge in Kazakhstan that the emergency numbers of the police, fire department and ambulance services are the same nationwide, and it is hardly credible that they wouldn't be aware of this. According to Irina, the telephone cord was broken as she had stumbled over it, so that was why they couldn't use the telephone, although she couldn't give details over the extent of the damage to the telephone caused by stumbling over it (presumably, the cord could easily be plugged in if it had only been pulled from the telephone). Asked why she didn't use the mobile phone, she replied in court that she didn't know how to call the police's emergency number from a mobile telephone.

4.21 On the street, they met a police officer on duty, who advised them to go to the police station in Karasai in order to report the alleged crime, as the supposed rape had occurred in that district. Thereupon they took a taxi to Karasai, arriving at the police station at around 3.00 AM. According to Irina, they found the gate closed, and after climbing over the gate and fruitlessly knocking on the door, they had to wait for several hours outside before the police station opened at around 6.00 AM, so that they could report the crime. A police officer of the Karasai Police Department, however, stated in court that the gates had been open, that the police station had been open all night, and that the lights had been on all night.

4.22 When reporting the rape, Irina, on behalf of her daughter, filed an application with the police to start a criminal case against Duvanov. The defense team noted that the date on the application (28 October 2002) was written in a different ink, with a different pen, and in a different handwriting than the text of the application, suspecting that the application had been prepared beforehand, with the date to be filled in later. When questioned in court about the date of filing the application, Irina got confused about the date of filing the application, stating twice that the application was made on 27 October (whereas the rape itself was alleged to have happened only in the early hours of 28 October). Despite these indications suggesting that there is a difference between the time of writing and the time of filing the application, a request filed by the defense to have the handwriting examined by an expert graphologist was rejected by the judge.

4.23 After the crime had been reported, a police squad immediately went to Duvanov's house to arrest him at 8.00 AM, finding him still asleep, and starting the preliminary investigation, in the presence of both Irina and Kristina. Noticing the many policemen on Duvanov's premises, his neighbour Cherkassov came by to inquire what had happened. Duvanov, already detained by the police, told Cherkassov that he had been charged with rape, and that he was probably framed. Not believing the charges to be true (he actually gave a very positive description of Duvanov in his testimony), he offered money to Irina and Kristina to withdraw the charges. Irina claimed in court that she overheard Duvanov requesting Cherkassov to offer money to them to withdraw the charges, but this allegation was denied in court by Cherkassov, who stated repeatedly that it was entirely his own initiative, and that no such request was made to him by Duvanov.

4.24 During the investigation at Duvanov's premises, Kristina went to a school located next to Duvanov's house to use the toilet, where she met Ms Nyukhova, a local teacher. Ms Nyukhova had actually met Kristina before in the company of Tatyana, who told her that she was her sister and that she was 18-19 years old. On her way to school, Ms Nyukhova had passed Duvanov's house, where she learned that he was arrested on charges of raping an underage girl. When Ms Nyukhova met Kristina at the school, she expressed her shock about the case, and asked Kristina if she knew by any chance who the victim was, upon which Kristina replied coolly "Me". Having much experience in working with teenage girls, she was very surprised that Kristina did not look upset or traumatized at all. When Ms Nyukhova described in court her encounter with Kristina at the school, Kristina denied that the meeting had ever taken place or that she had been to the school during the investigation, to the obvious shock and amazement of Ms Nyukhova.

4.25 Questions are raised by the behaviour of both Irina and Kristina in court. At the second day of examining the witnesses, Irina suddenly fainted when giving her testimony, describing her stay with the Cherkassov's (hardly the most emotional part of her testimony, having not yet arrived at the alleged rape itself and immediate afternath). This was a (temporary) setback for the defense, as her testimony was important for filling the many gaps left by Kristina in her testimony the previous day. There are, however, strong indications suggesting that her collapse was faked. She suddenly started crying, saying "I don't feel well", without any previous symptoms of feeling uncomfortable. Thereupon, one of the guards in the court ran to hold her even before she fainted, and only then she collapsed. An ambulance was called, and arrived within minutes, suggesting that her "collapse" was anticipated. The next day, when she returned into the courtroom at the order of the judge, it was shown that the medical documents of the hospital had not been properly stamped, as is normally done with emergency treatments, and that in her medical condition she could not have fainted, as fainting could only have occurred in the case of a sudden drop of blood pressure, whereas she suffered from high blood pressure. Kristina, from her part, who was present throughout the trial (as was Duvanov, sitting only a few metres from her away), hardly looked traumatized.

5. Analysis of preliminary investigation

5.1 The preliminary investigation by the police, including the examination of the forensic evidence, was marked by incompetence, numerous procedural violations, and prejudice. In conducting the preliminary investigation, the police focused only on evidence proving Mr Duvanov's guilt, while all pieces of evidence which might have exonerated Mr Duvanov were systematically and apparently intentionally overlooked. Numerous procedural violations in the investigation could be noted.There are furthermore strong indications that certain pieces of evidence were planted by the police.

5.2 Duvanov was factually detained at 8.00 a.m. on 28 October, but the protocol of detention was made 17 hours later, whereas according to the law it must be max. 3 hours.

5.3 Duvanov's defender was not admitted to him before 17.30 on the 28th, and he was deprived of the right to meet with him confidentially.

5.4 Duvanov was interrogated as a suspect at 18.20 on the 29th of October, i.e. 34 hours after factual detention, whereas the law provides for max. 24 hrs.

5.5 Principle of presumption of innocence is violated – in all procedural documents it is stated that a certain investigator, etc. "established that the suspect/accused Duvanov raped the underage girl". Besides, the report of inquirer Sagitov states: "….on the instruction of operative duty officer of Karasay PD, in Kainar village at …. address a rape of an underage girl took place".

5.6 After Duvanov's arrest, no under-nail contents, nor pubis comb-off and genital wash-off were taken from him for examination, which are all absolutely necessary in rape cases. According to the investigator, no under-nail contents were taken from him because his fingernails were too short. However, according to Duvanov, his fingernails were actually rather long and dirty on that day after the repair work of the radiator, a fact confirmed by Mr Zlotnikov, a friend of Duvanov's who visited him when he was in police detention, and which could also clearly be seen on the video of one of the investigatory actions in Duvanov's presence. An examination of Duvanov's under-nail contents could have proved that the bruises on Kristina's body were not made by him, but no such examination was ever made. No explanation was given for the police's failure to take pubic comb-off and genital wash-off for examination, as is standard procedure in rape cases. As Duvanov was still sleeping when he was arrested by the police, there was ample opportunity to do so before any hygienic measures were taken.

5.7 According to Duvanov, he could not have locked the door of the room during the alleged rape, as claimed by Kristina, as it was broken and could not be locked from the inside (see § 4.16). When he and his laywer drew the attention of the police to this detail during the preliminary investigation, the police failed to examine the lock, which could have disproved this part of Kristina's testimony. A motion filed in court by Duvanov's lawyers to have the lock examined was rejected.

5.8 Duvanov claims that he was probably drugged by putting a sedative in his wine (see § 4.16), a claim which the police sought to check by having the wine bottles and glasses examined on the presence of traces of sedative drugs by a chemical expert. In fact, the chemical expert had been asked by the police only to examine the bottles, not the glasses (whereas a sedative drug would most probably have been put in the glass, not in the bottle), but she nevertheless did examine them on her own initiative. Moreover, the chemical expert had been asked verbally to check for the presence of only one specific sedative drug called clophelinum, not of other drugs with sedative effects, thus making the examination incomplete. In the investigation, the police had taken the bottles and only two of the three wineglasses in the room (of himself, Kristina and Tatyana) from the room (see § 4.15) for examination, which contained Kristina's and Tatyana's fingerprints, but not Duvanov's. Of course, no traces of the sedative drug indicated by the police were found. The towel on which he had spilled some wine from his glass was never examined. Since the examination was incomplete, by failing to examine Duvanov's glass and the towel, as well as to check on the presence of other sedative drugs than the one indicated by the police, Duvanov's claim could not verifiably be proven nor disproven. It seems apparent that the police have taken every measure to ensure that no traces of sedative drugs would be found by the chemical expert.

5.9 As mentioned in § 4.14, a few days after the arrest a paper on which Kristina had written her biographical data was found in Duvanov's house by the police. The police searched for this paper some days after the arrest, as Kristina remembered about the paper only later, telling the police about the paper on 29 October. The paper was used by the prosecution to prove that Duvanov was aware of the victim's age when he raped her, thus aggravating the charges. There are strong indications that the paper was planted later in order to incriminate Duvanov:

- In making up the protocol of the search, serious procedural violations were made by the police. The chief investigator was in a different room during the search, and did not see it. Witness Kasymov – the Kazakh criminal code requires the presence of independent witnesses during such searches - did not see where the note came from. The protocol of search should also be considered inadmissible. The search must be conducted based on a motivated resolution. The protocol should state full names of each person participating in the search. The procedural actions are stated in the protocol in the order, in which they were conducted. Although Imanalieva, Saginbekova, Azykhanov (police officers) testified that they were helping chief investigator Zhakupova with the search, in the protocol they are not indicated as participants in the search as required by law, the protocol only containing their signatures. Furthermore, the order of actions in the protocol does not completely correspond with the video as shown in court. In fact, these procedural violations were acknowledged by the judge, who dismissed the paper as evidence.

- The court was shown a video of the search for the paper, in the presence of Duvanov, who looked obviously completely puzzled. After a short, perfunctory search a police officer picked the paper from the floor on which it had fallen from a book with an obviously purposeful move, apparently knowing what he was looking for and where to look for it.

- The police failed to examine the paper on fingerprints, while it should have contained Duvanov's fingerprints if he would have read it, nor was the paper checked on the presence of paint traces, which it should have contained if it had been written at the time by Kristina, as her hands were covered with paint after having painted the radiator. Asked why no fingerprints were taken, the responsible police officer replied that fingerprints do not last longer than three days, rendering it useless to check for fingerprints (even though Kristina had told the police about the paper on 29 October, still allowing for sufficient time to check for fingerprints), thus assuming beforehand that the paper had been given to Duvanov no later than 27 October and excluding the possibility that the paper had been written and planted later. Asked why the paper was not examined on the presence of paint traces, the chief investigator replied that she could see with her naked eyes that the paper didn't contain paint traces, so decided not to have the paper examined.

- According to Cherkassov, Duvanov had said explicitly that he could not help Kristina with entering model school or finding a job, contradicting Kristina's claim that Duvanov had promised her help in entering model school, for which purpose the paper with her biographical data (actually containing only her name, age and the fact that she likes music and dancing) had supposedly been written (§ 4.14).

- The paper is of A4-size, torn from a notebook which Kristina had in her purse. In fact, the purse, which was shown in court, is far too small to contain an A4-notebook, leaving the question where the paper actually came from open.

- When questioned in court, Kristina could not remember the approximate time of writing the paper with her biographical details.

- It can be questioned why Kristina "remembered" writing her biographical data on the paper several days after she was interviewed by the police.

- It is highly unlikely that Duvanov, if he had indeed been given the paper on that day and raped her afterwards, would have kept such incriminating evidence.

5.10 During one of the investigative actions which took place in the presence of Duvanov's lawyers, Irina was seen sitting with the baby on the couch on which the rape supposedly had taken place before the couch had been examined. This behaviour is not only very strange considering the fact that her daughther had been raped on that very couch, but it is also in contravention of investigation procedures, as the couch formed part of the evidence which still had to be examined. After Irina left the couch, a stain was seen on the couch, which was later cut out for examination. In private conversations, Duvanov's lawyers remarked that they had not noticed the stain before she sat on the counch.

5.11 When the police took Duvanov's clothes for examination, they just asked Duvanov what clothes he had been wearing the previous night, letting him take the clothes himself from the second floor, without checking with Kristina as a witness. In fact, in the investigation Kristina never mentioned Duvanov wearing underwear. As mentioned in § 4.16, Duvanov revealed in court that he had worn only shorts at the time of the alleged rape, but after consultation with his lawyer intentionally included his underwear in the physical evidence to be taken by the police, in order to test the police's reaction. Sure enough, later sperm stains were found on his underwear.

5.12 The police officers taking part in the investigation could not recall important details of the circumstances of the various searches and other investigative actions when questioned in court.

5.13 According to Kazakh criminal law, searches and investigative actions by the police must be witnessed by independent external witnesses, who sign the protocols. In one instance, one of the independent witnesses was Cherkassov, who as a witness cannot be considered independent, another witness was on old man who was not present at the investigative action he was supposed to observe, as it took part on the second floor while he stayed downstairs, another witness spoke only Kazakh, and thus could not have read or understood the search protocol (written in Russian) which he had signed. According to some witnesses, not all investigators mentioned in the search protocol were actually present at the search. In one instance, the witness didn't sign the search protocol at the place of investigation, as required by law, but later in Almaty.

5.14 In the investigation, the police did try to disprove Duvanov's allegation that sperm stains were taken from him while he was unconscious, used to taint his and Kristina's clothes, on the basis of expert advice of a professional sexuologist whether this was a theoretical possibility. However, the question posed by the investigators to the expert was whether an unconscious man is capable of sexual intercourse – which was of course answered in the negative. When questioned in court, the sexuology expert stated that his advice was based on the questions as formulated by the investigators. In fact, he stated that he could not exclude the possibility of a man in deep sleep having an ejaculation, but that that he would have to examine Duvanov in order to determine whether it would have been possible in his case. Since he had not examined Duvanov, nor was asked to do so, no definitive statement could be made by him on such a possibility.

5.15 The examination results of the forensic evidence (medical examination of the alleged victim, clothes and pieces of furniture cloth containing stains) are incomplete, unreliable, and inconsistent with the circumstances under which the rape had supposedly taken place, as confirmed by the highly respected Russian Institute of Forensic Medicine, who reviewed the medical conclusions at the request of the defense.

- The bruises on Kristina's body examined in the course of the investigation could not have been caused by Duvanov under the circumstances of the supposed rape. The question whether the bruises could have been caused by Kristina herself was not answered by the expert.

- The medical conclusions do not state the methods used and their reliability, as required by law.

- Some of the experts examining the physical evidence did not have valid licenses, as required by law.

- When the pieces of fabric were cut for examination, it was not indicated who made the cuts, or how and when they were made, as required by law, making the conclusions not reliable.

- According to the biological expert, sperm stains were found on her clothes and on the tampon with contents of her vagina, but no sperm or blood stains were found on his shirt or on the couch, contradicting the circumstances of the supposed rape according to Kristina's testimony.

- There was not enough material for cytological examination (whether Duvanov's sperm contained Kristina's vaginal secretion). No genital wash-off for Duvanov was conducted.

- The genetic expert checking the DNA stains, identifying them as Duvanov's with 99,9% certainty, did not check whether the stains were in fact sperm stains or stains containing other DNA material, just assuming them to be sperm stains as told by the biological experts.

6. Subversion of the judicial process

6.1 In the course of the trial, so many indications of wilful manipulation of the judicial process by the security organs, including planning and preparation of the operation against Duvanov, manipulation of the preliminary investigation, fabricating and planting evidence, and pressure on witnesses, have emerged, that they leave little room for doubt that Mr Duvanov was the victim of a targeted police operation to discredit him. Many of these indications have already been mentioned in the preceding chapters. The pattern of these various indications will be described further below, partly recapitulating information given above. The extent to which the police are apparently able and prepared to subvert the judicial process, and to which the judge's decision can be influenced by political considerations, raise serious concerns about the rule of law in Kazakhstan.

6.2 As shown in § 3.5, both the text of the press release of the Almaty Police and an internal instruction to the Almaty Police Department on how to deal with journalists on the Duvanov-case originated from the Presidential Administration, suggesting a link between the Presidential Administration and the case against Duvanov. Moreover, the fax messages with which these texts were received indicated a time of receipt at the Almaty Police Department of approximately 7.00 AM, or one hour before the actual arrest of Duvanov – and before the identity of supposed raper had been established, as until the actual arrest he had only been known as "an unknown man called Sergey". In court, the spokesman of the Almaty Police Department claimed that a technical failure of the fax machine had caused these faxes to show an incorrect time of receipt, and that actually these fax message had been received just before the press conference took place in the evening,. There are, however, strong indications suggesting that the fax messages were actually received earlier than acknowledged by the police spokesman in court, as the internal instruction contained errors and omissions which in the course of the day were proven to be incorrect. If the fax messages had indeed been sent later in the day just before the press conference took place, as claimed by the spokesman of the Almaty Police Department, the internal instruction would not have contained these errors.

- The instruction recommended to call Duvanov "detained", not "arrested".

- It stated that he had already testified that he was drunk and does not remember anything, while no such testimony was made by Duvanov. The claim that he was drunk had first been made by Kristina, but this was denied by Duvanov, and in fact no proof of intoxication was given.

- It stated that bedding had already been withdrawn for examination, whereas

this had not yet been the case.

- It stated that the lawyer of Duvanov was not identified yet, whereas it was already known at the supposed time of receipt of the fax that his defender was Zhovtis.

6.3 As shown in § 4.5 and 4.6, there are serious doubts about the financing and the motives of the Sai family's moving from Karaganda to Almaty, as well as about the financing of their stay in Almaty (see § 4.11), suggesting that they have received external financial assistance.

6.4 As shown in § 4.8, a link may be established between Cherkassov's early release from jail on drugs charges in May 2002, and his cooperation in hosting the Sai family in September in 2002. In fact, there is a possibility that he was requested to host the Sai family at his home by Dzhakishev, the police colonel from Karasai who seems to have run the operation against Duvanov. In one of his testimonies about his first meeting with Irina, Cherkassov stated that he he had been introduced the Sai family by a client of his, and Dzhakishev did confirm in court that he knew Cherkassov, and that he had done some repair works for him at one of his homes.

6.5 As mentioned in § 4.9, two key witnesses (Saule and Tatyana Cherkassova) have disappeared in the course of the trial, whose testimony would have shed a very different light on the events surrounding the alleged rape as presented by the prosecution's witnesses. Their disappearance suggests that they were either pressured to stay away from court, or wanted to avoid being pressured to give false testimony in court.

6.6 As mentioned in § 4.10, a retired police employee called Dyorin had been approached in the middle of September by two unknown persons (one of whom actually most probably Dzhakishev, a police colonel of the Karasai Police Station, and an acquaintance of his) claiming to act on behalf of the police in requesting him to host the Sai family, saying they were important police witnesses, and paying for their stay at his home. This took place in the middle of September, well over a month before the alleged rape. Although Dyorin was unwilling to identify Dzhakishev in court, there is strong reason to suppose that it was indeed Dzhakishev who had approached him with the request to host the Sai family. In interviews with Duvanov's team defense team as well as with other independent sources before the trial, he had identified one of the visitors introducing the Sai family explicitly as Dzhakishev, adding however that he was unwilling to identify him by name in court, fearing pressure from the police. Moreover, it is highly unlikely that he would agree to host two complete strangers with a baby in his home for a considerable length of time at the request of two other unknown persons, claiming to make such a request on behalf of the police, unless he knew the persons introducing the Sai family.

6.7 As stated in § 4.19, Baiseitov's wife had told a witness that upon her return to Almaty from Kainar after the alleged rape in her husband's taxi, Kristina was met in Almaty by Dzhakishev, before proceeding to her mother. This remark made by Baiseitov's wife was reported in court by Galyapina, Duvanov's sister-in-law, although both Baiseitov and Dzhakishev denied in court that the meeting had taken place, while Baiseitov's wife denied in court ever having spoken to Galyapina. Of course, it may be argued that Galyapina's testimony should be dismissed as evidence – as the prosecution duly did -, as Galyapina cannot be considered a neutral witness and the meeting was not confirmed by the persons involved. There are, however, reasons to lend credence to Galyapina's testimony, and to assume that the Baiseitov's gave false testimony in court, under police pressure not to disclose the nocturnal meeting with Dzhakishev.

- Galyapina's statements concerning remarks made by Tatyana about Kristina's behaviour have been corroborated in court by other, independent sources, enhancing her credibility as a witness.

- The conversation in which Baiseitov's wife reportedly made the remark – and which she denied ever having taken place – had also been attended by Galyapina's brother-in-law.

- When Baiseitov's wife denied in court ever having spoken to Galyapina, she added that she had never been interrogated in her life by the police – forgetting that she had been interrogated in the preliminary investigation, and that a protocol of that interrogation had been made up.

- Finally, if Galyapina's version were true, it is only logical that the police would seek to prevent Baiseitov from disclosing the nocturnal meeting with Dzhakishev, as this could expose the whole set-up. The Baiseitov's and Dzhakishev's denial of the meeting is therefore in itself not inconsistent with Galyapina's testimony.

6.8 As mentioned in § 4.3, the court was shown a videotaped testimony of a witness who had known Kristina in Karaganda, painting a very unfavourable portrait of her. In the video, she looked relaxed, at ease, obviously speaking her mind. The video in question was a videotaped conversation with one of Duvanov's laywers, who had come to Karaganda to investigate Kristina's background. They had been introduced to the witness by Gusakov, director of the Karaganda branch of the Human Rights Bureau. In court, Gusakov told that after the conversation with Duvanov's lawyer, the witness had called him in tear, saying that she was threatened by the police who had found out about her talking to Duvanov's lawyers, and asking for the video. Later on the day, she had been questioned by the police, and this interrogation was also videotaped and shown in court. In this interrogation, the witness retracted most of the statements she had made about Kristina in her conversation with Duvanov's lawyer earlier in the day. In the video of her questioning by the police, she looked tense and nervous, obviously saying what she was told to say. In fact, the defense team found that in Karaganda many potential witnesses were put under pressure not to talk to them. This is a clear example of police pressure on witnesses.

6.9 As shown in chapter 5, the procedural violations and omissions of the police in the preliminary investigation as well as their failure to answer important questions about the preliminary investigation in court are too numerous to be ascribed to mere incompetence, while their failure to investigate facts which could have confirmed Duvanov's version of events (see § 5.6, 5.7, and 5.8 ) has been clearly intentional. It has furthermore been shown in § 5.9, that there are strong indications suggesting that the paper on which Kristina had written her biographical details has been planted later. This suggests not only imcompetence and unprofessional prejudice of the police, but actual complicity in a set-up to frame Duvanov.

6.10 The court heard testimony of Bektasov, a police colonel responsible for relations with public associations and the mass media, who had reported on the activities of the Human Rights Bureau for which Duvanov worked. In fact, in his testimony in court, Bektasov referred to his job as "controlling" public associations, which is explicitly forbidden by the constitution, including collecting information on citizens (i.e. shadowing) who were connected with such public associations or provided information to mass media. In court, Bektasov refused to answer questions put by the defense, saying that he could not divulge "state secrets" in the presence of international observers, and addressing the judge only in Kazakh, whereas the trial was held in Russian. The judge made no serious attempt to make him answer the questions of the defense, although there are indications that Bektasov was a key figure in the set-up to frame Duvanov. Outside of court, Bektasov was heard boasting that he has followed Duvanov for over twelve years, and could now finally grab him.

6.11 As described in § 4.25, officials at the court seemed to be quite well prepared for the sudden, most probably faked, collapse of Irina in court. A guard in the court got up to hold her even before she started fainting, an ambulance arrived unusually quickly within minutes, and the next witness (Cherkassov) turned out to be waiting outside of the courtroom, although the whole day had originally been scheduled for the examination of Irina. The court officials' apparent preparedness suggests complicity in an effort to mislead the defense, and thus to obstruct justice.

6.12 As mentioned in § 4.16 and § 5.11, Duvanov revealed in court that the underpants on which his sperm stains were found had not been worn by him at the time of the alleged rape. If true, this would prove that the physical evidence had been tainted in order to incriminate him – which had been Duvanov's intention in deceiving the police at the time of his arrest about his having worn the underpants in the first place. Of course, it is easy to dismiss Duvanov's statement as evidence, as the judge did in his verdict, holding his deception of the police against him, since it could not be confirmed by other sources and Duvanov had an obvious interest in making such a statement. There are, however, reasons not to dismiss Duvanov's statement so lightly.

- It is the only instance in which Duvanov's testimony in court differed from his statements made to the police in the preliminary investigation, for which he had a plausible explanation. He had furthermore deceived the police only after consultation with his lawyer, who can confirm this.

- No mention had been made by Kristina of the underpants in her initial statements to the police.

- If he had indeed raped Kristina and worn the underpants at the time of the alleged rape, he would presumably have a much stronger interest in not including it in the physical evidence, for which he had been given the chance by the police, than to include them.

- By allowing Duvanov to pick himself the clothes to be examined by the experts without checking with Kristina as a witness, the police blew themselves the chance to disprove Duvanov's allegation that the physical evidence had been tainted.

- Duvanov's allegation of fabrication of evidence certainly does fit a pattern of manipulation of the investigation described in the rest of this chapter.

The possibility that Duvanov's clothes had been deliberately tainted can therefore not be excluded.

7. Analysis of trial proceedings

7.1 The trial against Duvanov was fatally flawed, as the principle of presumption of innocence was violated from the start, the judge based his verdict on doubtful evidence presented by the prosecution, while all evidence in the accused's favour presented in the course of the trial as well as doubts raised over the evidence presented by the prosecution and indications of manipulation of evidence and political motivation were ignored by the judge in motivating his judgment, indicating serious bias. The trial itself was, however, held in a transparant manner, in the sense that the defense could, in general, call witnesses, present evidence, examine witnesses, and argue their case. Still, various procedural violations could be observed, which call the legality of the trial into question.

7.2 While the trial was transparant, it cannot be considered fair, taking as a definition of fairness that the judge could in all fairness have reached his judgment on the basis of all evidence and arguments presented to him in court. In his verdict, the judge simply ignored all legitimate doubts raised in court about the alleged victim's testimony, the evidence presented by the prosecution, the preliminary investigation, indications of manipulation and fabrication of evidence and of political motivation, basing himself solely on the prosecution's evidence in declaring Duvanov guilty.

7.3 During the preliminary investigation and judicial process the following principles of criminal procedure were violated:

- Legality

- Presumption of innocence

- Conducting judicial process on the basis of controversy and equality of rights

- All-round, complete and objective investigation of circumstances of the case

- Providing the suspect and accused with a right for defense

- Providing the right for qualified legal assistance

7.4 The principle of presumption of innocence was violated – which means that all legitimate doubts about evidence presented by the prosecution must be interpreted in favor of Duvanov. This particularly concerns the statements of defense on provocative character of actions against Duvanov. For example, the application of the mother written with an "open date" and doubts about authenticity of the date "28.10.2002" on that application, which was rejected by the court; the internal instruction for the press conference, the nature and importance of which the court for some reason did not want to clear out; testimony of witness Dyorin, disproving the testimonies of the victim and her mother; falsification of evidence during search; contradictions in testimonies of witnesses and experts. According to the principle of presumption if innocence, all legitimate doubts as raised above should have been interpreted in favor of Duvanov. If all doubts raised by the defense about the fabrication of evidence and the political motivation of the charges against him had been interpreted in Duvanov's favour, then not a single piece of evidence reliably proving his guilt would be left. There are so many contradictions and lies in the testimony of Kristina, that this should be excluded from the evidence. The fact that all legitimate doubts have consistently been interpreted against Duvanov instead of in his favour shows that the principle of presumption of innocence was violated from the start.

7.5 The investigator did not present the resolutions on conducting expert examinations to Duvanov and his lawyers on time, so they could not ask questions and claim dismissals. They were furthermore initially given a very limited time to familiarize with the materials of the case, and were not allowed to photocopy the documents, although later they were given the opportunity.

7.6 The expert examinations of the physical evidence must be considered inadmissible as evidence, on the grounds of unconformity with the law, incompetence of experts, unscientific methods of research, involvement of unqualified persons, which all amounts to violating the rights of Duvanov and his defenders.

7.7 The judge rejected their motion on holding a preliminary hearing, although he was obliged to do so, according to the law, after being informed of serious violations of criminal procedure code.

7.8 In the course of the trial, the judge deliberately and illegally limited the right of Duvanov to meet with his lawyers confidentially, and also consult in court; while, the victim was not limited in her consultations with lawyers, even in court – thus violating the principle of conducting judicial process on the basis of equality of rights of the two sides.

7.9 The judge put off deciding on various motions filed by the defense, saying he would take them into consideration in the consultative phase when making his final judgment. This is in violation of the Criminal Procedural Code (p.3 art. 102), which stipulates that a motion is subject to consideration and solution immediately after it is filed. In cases when immediate decision on a motion is not possible, it must be solved within 3 days after it being filed.

7.10 The judge read out in court the testimonies of several witnesses (Tatyana and Saule Cherkassova, and Zhestkaya, Irina's sister), although no reasons excluding possibility of their attending the trial were established, whereas reading out testimonies without the possibility of cross-examination is possible only in exceptional cases. This case was not exceptional, and their attendance could have been provided for before the end of judicial investigation. Since Tatyana and Saule were key witnesses, especially their absence from court can be considered a major omission.

7.11 The prosecution was represented by two prosecutors, whereas according to the CPC participation of more than one prosecutor is possible only in complicated and multi-episode cases. Since the trial was (in the words of the prosecution) an ordinary criminal trial, there were no legally valid reasons for the presence of more than one prosecutor. A motion filed by the defense on leaving only one prosecutor was rejected by the judge, without proper motivation.

7.12 Motions filed by the defense on attaching certain documents to the materials of the case (such as tickets, invitation, internal instruction for the press-conference) were repeatedly rejected; the same with motions on interrogation of certain witnesses, who were interrogated during the preliminary investigation, on inspection on the spot and withdrawal of important physical evidence, conducting additional expert examinations, etc., thus violating the principle of all-round, complete and objective investigation of circumstances of the case. Furthermore, all these motions were rejected without motivation, as required by the CPC (art. 102, p. 6).

7.13 The above mentioned violations must be considered a violation of the principle of legality. According to article 10 (part 3) of CPC , violation of the law by a court or in the course of investigation is not admissible and should result in considering these illegal acts invalid and canceling them.

7.14 The lowering of the sentence by the judge is obviously a political compromise, and is not based on an objective examination of the evidence presented by the prosecution. The prosecution sought to prove that Mr Duvanov was aware of the alleged victim's minority, basing itself on the testimony of the alleged victim that she told Mr Duvanov her age, as well as on a note discovered by the police a few days after the arrest in Mr Duvanov's home in which she had written her biographical data. While the judge was right in dismissing the evidence on this point presented by the prosecution on technical grounds, he was not right in not dismissing other pieces of evidence, which should have been dismissed on similar grounds. By dismissing the protocol of the search on technical grounds, thus making a lower sentence possible, the judge showed strong selectivity in not lending credence to the alleged victim's testimony on this particular point, while ignoring the many other inconsistensies in the rest of her testimony, and dismissing this particular piece of evidence on technical grounds, while ignoring the many procedural violations in other evidence presented by the prosecution.

7.15 The judge showed bias against Duvanov, by holding the fact that he gave a different statement in court about his wearing underpants than to the police in the preliminary investigation against him in his verdict. This is evidence of clear bias, since the numerous instances in which the alleged victim's testimony given in court differed from her original statements made to the police were ignored and not held against the prosecution, and this was furthermore the only instance in which Duvanov's statement in court differed from his original statement made to the police, for which he had a plausible explanation. If anything, legitimate doubts left about Duvanov's wearing underpants at the time of the alleged rape should, according to the principle of presumption of innocence, have been interpreted in Duvanov's favour, not held against him.

8. Conclusion

As has been shown in the present report, the trial against Duvanov was fatally flawed, as the principle of presumption of innocence was violated from the start, and the judge showed strong bias by motivating his verdict on dubious evidence presented by the prosecution. There can be little doubt that Duvanov was the victim of a politically-motivated secret operation of the security organs to discredit him. Especially worrying is the extent to which the security organs are apparently able and prepared to abuse their powers to subvert the judicial process, raising serious concerns about the rule of law in Kazakhstan. An upholding of the verdict by the court of appeal, in blatant disregard of numerous procedural violations, dubious evidence, and clear signs of politically-motivated subversion and obstruction of justice, could therefore severely undermine confidence in the rule of law in Kazakhstan. Confidence in the rule of law can only be maintained by overturning the verdict, acquitting Duvanov, starting an investigation into wilful subversion of justice by the security organs, and punishing those responsible.

IAC EURASIA-Internet, March 11, 2003

http://66.70.115.21/cgi-bin/datacgi/database.cgi?file=News&report=SingleArticle&ArticleID=0000904