30 juil. 2015
Certain aspects of case Zhovtis v Kazakhstan, 2021/2010
The case has three interesting aspects.
1) The internal criminal case started after the ratification of the Covenant of Political and Civil Rights by Kazakhstan, however the Optional Protocol providing the right of individual petition was ratified on 30/09/2009 in the middle of the internal criminal case. What shall we do with the possible breaches of the Covenant before the latter date? The Committee applied a strict interpretation, and rejected everything the author had written (§ 7.4).
It is interesting that Article 40 of the Covenant provides the Committee the right to require a report of a State on a particular question. I have no example of how it works, but it could be a remedy to many authors similar to those in Kazakhstan before 30/09/2009.
2) Mr. Zhovtis claimed that the internal appeal court had to call independent experts who could possibly explain that it had been a fault of the pedestrian (§ 2.7). The Committee answered that he “failed to demonstrate that the alleged “bias” or “lack of equality of arms” reached the threshold for arbitrariness in the evaluation of the evidence, or amounted to a denial of justice” (§ 7.5). Could extensive examples of Kazakh case law help? This question is open.
3) Finally, Mr Zhovtis claimed that the fact that he was not present personally but just represented at internal appeal proceedings breached the right to appeal (§ 2.9). The point of view of the UN body is that this does not lead automatically to the breach of the right of appeal within the meaning of Article 14(5), and needs more substantial argumentation (§ 7.6).
Thus, there might be differences between appraisal by the European Parliament and the European Commission on one hand, and by the UN judicial bodies on the other hand.