Mongolia’s Lacking Due Process Versus Families On Social Media
American Justin Kapla and Filipinos Hilarion Cajucom Jr. and Cristobal David have been detained in Mongolia for 818 days now. Americans who wish to draw this case to President Obama’s attention can sign this linked petition for Mr. Kapla and this one by Mr. Cajucom’s family in the U.S. to accomplish that. Supporters of Hilaron Cajucom can also sign this iPetition to draw attention to his case internationally. Facing clear failings of due process by Mongolian and international standards alike, family members and friends of the three imprisoned men have taken their cause to social media.
All three men have sizable families at home in Minnesota USA and the Philippines respectively that miss them and have suffered confusion and heartache for two and a half years. 14 months ago when I did a story about the men’s second Christmas away from families, the family members of Mr. Cajucom and Mr. David I interviewed asked me to personally explain to them why their loved ones couldn’t come home to visit. In that story 14 months ago, the offices of Congresswoman Bachmann, Senator Klobuchar and Senator Franken from Minnesota all went on the record in support of Mr. Kapla. For the Kapla family, periodic updates from their representatives in Washington still failed to change their ability to have a family reunion.
Sue Kostanshek, Justin Kapla’s mother says:
Justin has always had an unbelievable way to make you feel like everything was going to be okay. There always was another plan, another way out, and hope that that United States government was going to do their part. Now that he has been incarcerated, it has ripped out my heart. Justin always shared with us positive messages of hope, but now that is gone.
Bill Kapla, Justin Kapla’s father adds:
Parents cannot imagine what this is like. I feel so helpless. Sometimes, it feels like I’ve already lost a son. My insides are in knots, and I don’t really sleep. I don’t really know where my son is, how he is being treated, whether he is well. I worry so much about my daughter-in-law and grandchildren, too. Everyone should know what is going on in Mongolia, and they should do whatever they can to help.
Below is what Mr. Cajucom’s daughter Lira who will turn 10 in March recently wrote to him as it appears on the Free Hiliarion Cajucom website homepage.
After being sentenced to imprisonment in Mongolia for more than 5 years each on January 30, 2015 – after 2 1/2 years of being detained in Mongolia prior – the families and friends of these men have taken to social media to try to gain an international public outcry in hopes Mongolia’s government will listen. Despite clear violations of Mongolia’s own standards of due process, their loved ones now sit in prison. The details of the due process violation are detailed below. For the families, the facts of the inadequacy of Mongolia’s case against these three men is of little comfort when they have been denied the ability to see their loved one at celebrations, graduations, weddings, hospitals and funerals for two and a half years already.
The text below is quoted directly from the Free Justin Kapla Facebook page (and the related Free Justin Kapla webpage). It was prepared by lawyers working on behalf of the SouthGobi three:
Procedural Violations in Criminal Case of Justin Kapla, Cristobal David and Hilarion Cajucom
The following procedural violations of Mongolian law occurred in the criminal case of Justin Kapla, Cristobal David and Hilarion Cajucom alleging tax evasion.
1. Change in Prosecutor’s Recommended Sentence
The prosecutor recommended only a fine in her closing arguments. However, the following morning she changed her position and decided to recommend a prison sentence as well as a fine. This was a violation of Mongolian law, since the defense lawyers did not have a chance to address the statements made by the prosecutor in recommending the prison sentence. It also conflicts with uniform practice, and indeed Mr. Kapla’s defense team is unaware of a prosecutor having ever changed positions in this way.
2. Failure to Issue Tax Conclusion
Under Mongolian law, criminal proceedings for tax evasion cannot be initiated unless the responsible tax authority first conducts an inspection and issues a conclusion on tax evasion having taken place. A tax conclusion is also required for the appointment of independent experts to issue their own report on whether tax evasion occurred, since the experts’ report must examine whether the tax conclusion is correct and cannot draw its own findings or conclusions. Those requirements were violated in this case, since the criminal proceedings were conducted and tax experts’ reports were completed without any tax conclusion ever being issued. In other words, the defendants were convicted of tax evasion even though the responsible tax authority never found that it took place.
3. Failure to Return Case for Incompleteness
In August 2014, the court issued a ruling transferring this case to the prosecutor’s office for further investigation. The ruling required various actions to fix major deficiencies in a January 2014 tax expert report that was prepared for the case, and also ordered the examination of relevant documents relating to prior tax inspections. However, those required measures were never taken. Instead, another tax expert report was prepared that relied almost solely on the deficient January 2014 report with essentially no additional examination or review. In fact, the new report was identical to the faulty January 2014 report in every way, except for relatively minor reductions in penalties, interest and fines. Even though the new report was virtually the same as the earlier report that was held insufficient, the court found the new report adequate to convict the defendants.
In general, a case is incomplete under Mongolian law if provisions of a court order to transfer the case have not been observed. As such, because the actions required by the court’s August 2014 decision in this case were never taken, the case remained incomplete. This in turn means that the court was not allowed to issue a conviction, since Mongolian law requires courts to return incomplete cases for further investigation under such circumstances.
4. Tax Experts’ Lack of Independence
The forensic experts appointed in this case included a number of tax inspectors. Tax inspectors are employees of the Mongolian Tax Authority, which falls under the Ministry of Finance. The experts’ appointment violated Mongolian legal requirements for the protection of their independence, since the Ministry of Finance is a participant in the case as the alleged victim and the experts are under its influence as employees.
5. Lack of Capable Translators
The defendants were unable to fully understand the translations provided in court due to a lack of capable court-appointed translators, which violated their rights under Mongolian law.