KAZAKHSTAN: Criminal conviction, large "moral damages" - and new criminal case?

Retired Presbyterian Pastor Bakhytzhan Kashkumbayev was this afternoon (17 February) handed a four-year suspended prison term in Kazakhstan's capital Astana. He was convicted under Criminal Code Article 103 ("Intentional inflicting of serious harm to health") of harming the health of a church member, even though that church member has insisted to state authorities, Forum 18 News Service and others that her health was not harmed. He also has to pay his alleged "victim" large "moral damages" of 2 Million Tenge (about 65,800 Norwegian Kroner, 7,900 Euros or 10,800 US Dollars).

Lyazzat Almenova, the only person whose heath the state claims was harmed told Forum 18 in July 2013 that Kashkumbayev is "totally innocent and has not harmed my health at all" (see F18News 26 July 2013 http://www.forum18.org/archive.php?article_id=1860). She had earlier written to Astana Prosecutor's Office to say she is psychiatrically healthy, that a 2012 assessment of her was conducted illegally, and calling for the case to be abandoned (see F18News 12 June 2013 http://www.forum18.org/archive.php?article_id=1846).

Prosecutors for reasons they did not explain dropped four other criminal charges levied during the two year investigation. Forum 18 notes that on one of the charges a new criminal case could be launched. The state Agency of Religious Affairs (ARA) has also stated that Grace Presbyterian Church's legal status may be under threat (see below).

The retired Pastor's Grace Presbyterian Church has long been a target of state hostility. For example, after an October 2012 police raid on the Church, detained church members noted that police questioning displayed a curious lack of interest in the alleged harm they were supposedly investigating (see F18News 19 October 2012 http://www.forum18.org/Archive.php?article_id=1756).

The 67-year-old retired Pastor Kashkumbayev was freed in the court room after exactly nine months' imprisonment, but will live under at present unclear restrictions. He will challenge the conviction.

"One of the strangest cases I have seen in terms of legality"

"In my experience as a lawyer, this is one of the strangest cases I have seen in terms of legality," Pastor Kashkumbayev's lawyer Nurlan Beysekeyev told Forum 18 after the verdict was handed down orally. "It was not just strange, but from the standpoint of the law, all types of violations occurred, when the case was opened, when it was being investigated and during the trial."

The case against Pastor Kashkumbayev, who led Astana's Grace Church until his retirement in October 2011, originated in 2011 amid claims he had harmed the health of church member Almenova, and the criminal case was formally lodged on 11 February 2012. The defence has strongly contested the legality of the trial (see F18News 22 January 2014 http://www.forum18.org/archive.php?article_id=1918).

Both Kashkumbayev and Almenova rejected the claims. Kashkumbayev was only informed of the exact nature of the criminal case on 17 May 2013, the day of his arrest (see F18News 20 May 2013 http://www.forum18.org/archive.php?article_id=1837), according to case documents seen by Forum 18.

New criminal case?

By the time the case reached court on 22 January 2014, prosecutors had added accusations that retired pastor Kashkumbayev had harmed the health of another church member, had committed two counts of "religious extremism" and leading a religious organisation that harms individuals' health (see F18News 22 January 2014 http://www.forum18.org/archive.php?article_id=1918).

However, during the trial Prosecutor Olzhas Shalabayev withdrew all but one of the charges with no explanation. The specific accusation of harming another named church member was handed back to prosecutors, the lawyer Beysekeyev told Forum 18. "A new criminal case could be launched against Pastor Kashkumbayev," he warned.

"They shouldn't have violated his rights"

Atheist writer Aleksandr Kharlamov, who has like Pastor Kashkumbayev also been subjected to arrest, detention and forcible psychiatric examination, welcomed Kashkumbayev's release from prison. "They shouldn't have violated his rights," he told Forum 18 from Ridder in North Kazakhstan Region on 17 February. "I'm glad he's now been released." 

Like Kashkumbayev, Kharlamov spent one month's forced detention in a psychiatric hospital in Almaty in 2013, a doctor telling him that he had been sent to the psychiatric hospital "because you are an inconvenient person for the authorities" (see F18News 7 October 2013 http://www.forum18.org/archive.php?article_id=1884). .

Kharlamov is still facing criminal charges for articles he wrote in defence of atheism. He is alleged to have broken Criminal Code Article 164 Part 1 by allegedly "inciting religious hatred" (see F18News 22 January 2014 http://www.forum18.org/archive.php?article_id=1918).

He wrote to various state agencies on 27 January calling for the criminal case to be dropped. "I have received no response," he told Forum 18. "They're clearly still thinking about it."

Other violations of freedom of religion or belief continue

The conviction of Kashkumbayev came as the criminal investigation against New Life Pentecostal Church in Almaty may have been behind the exit ban (since removed) which prevented Pastor Maksim Maksimov and his wife Larisa from leaving Kazakhstan on 12 February (see below).

Raids on meetings for worship continue, most recently with a raid on a Baptist Sunday service on 9 February in Aktobe (see below).

The authorities have also begun moves to expel the Din-Muhammed Tatar-Bashkir mosque community from their mosque in Petropavl (see F18News 5 February 2014 http://www.forum18.org/archive.php?article_id=1924).

Conviction

Judge Gulzhakhan Ubasheva of Astana's Almaty District Court No. 2 found retired Pastor Kashkumbayev guilty of violating Criminal Code Article 103, Part 1 ("Intentional inflicting of serious harm to health"). This carries a punishment of restrictions on freedom or imprisonment of between three and seven years. Prosecutor Shalabayev had asked in court for a three-year prison term.

Judge Ubasheva gave him a four-year prison term, suspended for three years, church members present in court told Forum 18 after the hearing. They said the written verdict is due within 15 days, though the Judge said it should be ready by 21 February. They insisted Pastor Kashkumbayev will appeal against the conviction.

Judge Ubasheva also ruled that pastor Kashkumbayev must sign a statement not to leave the city and must follow "appropriate conduct". It is unclear what exactly this means.

Kashkumbayev was also ordered to pay more than 2 million Tenge "moral damages" to the "victim", including legal costs. As a court ruled that Lyazzat Almenova is not responsible for her own decisions, and appointed her sister Guldana Almenova as her representative, it remains unclear who the money should be paid to.

Pastor Kashkumbayev's lawyer Beysekeyev said he thinks the money will be due to be paid not to Lyazzat Almenova but to her sister Guldana.

Svetlana Glushkova of Radio Free Europe's Kazakh Service noted that the many church members present in court were visibly upset by the verdict.

"I'm satisfied"

Guldana Almenova lodged the original complaint against Pastor Kashkumbayev in July 2011, according to court documents, alleging that her sister's health had been harmed. Lyazzat Almenova was twice forcibly incarcerated in psychiatric hospital and given a diagnosis of "paranoid schizophrenia of episodic type", a diagnosis she has consistently resolutely rejected (see F18News 26 July 2013 http://www.forum18.org/archive.php?article_id=1860)..

Police warrants for October 2012 raids on the Grace Church and the unconnected New Life in Oral in West Kazakhstan Region stated at the time that the complaint was lodged by the sisters' mother. Church members have repeatedly strongly denied the allegations. They noted that police questioning ranged far beyond the alleged "harm", and that police and state media also made unsubstantiated claims that the Church uses "hallucinogenic" substances for Communion. The alleged "hallucinogens" were a commonly drunk local red tea used as a non-alcoholic communion wine (see F18News 19 October 2012 http://www.forum18.org/archive.php?article_id=1756).

"What do you think my reaction to the verdict is?" Guldana Almenova told Forum 18 after the verdict was given. "The court recognised that he [Pastor Kashkumbayev] is guilty of causing serious harm. I'm satisfied." Asked whether her sister Lyazzat or she will get the money, Guldana Almenova responded: "I don't know. But it's not about the money – it's about the fate of an individual."

Told that Lyazzat Almenova had insisted to Forum 18 that her health was not harmed, Guldana Almenova responded: "She's not in a state to give adequate answers to questions." Both sisters were in court during Pastor Kashkumbayev's trial. After the verdict, Lyazzat Almenova told Glushkova of Radio Free Europe's Kazakh Service that she is fully healthy.