The Monitoring of violation of freedom of speech in Kazakhstan in May 2000

On April17 of 1997 the newspaper “Ak zhayik” publicized an article of Zhenis Kenzhes Uly “Mersedeses for Treasury thieves”. In author’s opinion, with participation of Atyrau City Akim the state has been damaged by 150000 DM.

The Akim of Atyrau City Z. Tkenbayev appealed to the court with lawsuit about protection of honor and dignity, which he evaluated in 7 million tenge.

The case on this lawsuit was closed in April of 1999 having passed numerous instances. The regional court rendered a decision to turn down Z. Tkenbayev’s lawsuit (who by the time was not the Akim of the city) due to “plaintiff’s failure to appear”.

Today the corresponding criminal case regarding officials of akimat are in production of department of the Committee of National Security of Atyrau region without any progress. Information about its closing wasn’t reported.

On May 11 of 2000 a courier brought a letter from regional court to the editorial office of the newspaper “Ustinka” addressed to Evgeniy Cherkashin.

The letter points out: “In issues 10, 11, 12 of your newspaper under the heading “destructive department”, an article “hunting season for people” of author Sergei Vasiliyev was publicized. Impoliteness of this article is obvious. The chronicle of criminal case described by the author, the course of investigation by police and examination of the case by the judicial division of criminal cases of the regional West Kazakhstani court has an insulting character. The meaning of the article, in our understanding, oriented towards Philistine, comes to the following: what idlers and parasites are these policemen and what a slow-witted court, which did not want to properly evaluate all circumstances of the case and did sentence the innocent. Due to the fact that the author used photos of all participants of the trial, including the judges, with indication of their names, we consider the caused moral damage to be substantial, because the author’s conclusions offended professional and private dignity of the judges. Open expression of adherence to the position of protection and making arguments of defender of the sentenced, the author did not think it would be necessary to point out the court’s arguments from the sentence in refutation of position of defense. Thus, the unilateral evaluation of the events expounded by the author led to the possibility of wrong interpretation of the activity of law-enforcement agencies, as well as the that of the court. The Supreme Court of the RK approves the legality and basing of the court’s sentence in terms of this case. In regard to the aforementioned we suggest:

In the opposite case we preserve a right to appeal to court with lawsuit to your newspaper and personally to Vasiliyev “About protection of honor and dignity and compensation of moral damage”.

The judges of the regional West Kazakhstani court D. Kisikov, K. Seytov, S. Atalykov.

In February 13 of 2000 a plot where the judge of the district court Anna Gromova prohibited the TV journalists to shoot the trial in TV program “Vesti Astany” of the independent TV channel (NTK), saying that her hair does not look good and that she is actually sick.

On May 31 the author of the story Irina Isakina received a writ. The reason for judicial examination became the lawsuit of A. Gromova about abasement of honor and dignity and compensation of moral damage in amount of one and a half million tenge.

The situation is complicated by the fact that for the last months NTK stopped working in Astana and I. Isakina transferred to TV channel Tsesna-Aziya, so the lawsuit is addressed to the correspondent I. Isakina and TV channel Tsesna-Aziya.

The court of the second instance left the lawsuit of ex prosecutor of Timiryazevsky district to the personal correspondent of the newspaper “Karavan” in North Kazakhstani region Zaure Zhumaliyeva about protection of honor and dignity on article “it is not the snow which covers the tracks” valid. The editorial office was supposed to compensate 100000 tenge, the journalist - 50000 tenge.

Soon after this major of police S. Musin called out Zaure Zhumaliyeva by writ to the City Administration of Internal Affairs of Petropavlovsk City. He proposed to Zhumaliyeva to use law about amnesty so that the criminal case about slander according to the statement of ex prosecutor of Timiryazevsky district of North Kazakhstani region A. Zhanakov would not be investigated. In reality, such sort of statement was not appealed.

More often state officials resort to protection of honor and dignity according to the monitoring records of the Foundation “Adil soz”. On one hand, this, may be, right. The state official, just like any other citizen, has a right for good name and his judicial protection. However, these sort of judicial cases turn into unusual cases and leave a lot of bewildering questions. As the classic said: “Everything looks legal from the appearance, but in its essence it’s a total mockery”. What is the Union of Judges, which appealed and won on behalf of the judges a multimillion lawsuit from the newspaper “Nachnem s ponedelnika” - club of interests, trade union or a legal office? And who examined the judicial lawsuit to this newspaper? Why in Atyrau having an open criminal case did not stop the lawsuit of the official about protection of honor and dignity and the prosecutor’s interference was needed? Why the judges of the regional court bring in unforeseen by law collective claim into the editing office and demand also unforeseen by law apologies? What should we say about the judges of the district courts?

The cause, in our opinion, is imperfection of legislature and lack of corresponding judicial practice, not mentioning the corresponding generalizations of such practices by the highest judicial instance of the country - The Supreme Court of the RK. Law of the RK “About the order of examination of citizens’ appeals” of 1995, in its essence, repeated the norms of the corresponding Soviet law. Law of the RK “About state service”, which is more like some sort of instruction for officials”.

May be, its time to think about acceptation of some sort of code of state service. There is the Code of civil procedure with its founding principles, but somehow there is no code of execution of state service with principles of glasnost and publicity. Meanwhile, entering the state service, which under heightened surveillance of the public, public in its essence, the official steps on the path of serving the community and being fully aware of the heightened criticism to his persona, his heightened responsibility. Which in turn should not be taken into account while examining their cases in court.

On April 28 the editorial office of the newspaper “Reklama” received a letter from the city tax inspection, which talked about intentions to appeal to the court in case the editorial office does not apologize on pages of the newspaper. The reason for this letter was publication in the issue of April 1, which was called “Cemetery tax”. This article ironically said that the only thing left for the government to tax is cemetery and air, for the rest the Kazakhstanis have been paying off fully.

The tax people confirm that after this article was issued the old people keep coming in and asking the same question: where to pay off the cemetery tax, fearing that that otherwise they would not be buried.

The writer Erkin Turysov appealed to court with lawsuit demanding to exact 10 million tenge for moral damage from Shymkent newspaper “Aigak”. The reason for this appeal became last year publication in the newspaper, in which the author questioned the authenticity of historic data adduced by the author in the novel “Tamerlan”. The newspaper editor Dulat Abish petitioned about production of examination and was going to appeal a counterclaim for the same amount.

Yuliya Nurmagambetova

The judicial board of civil cases of Karagandinsky regional court, having examined cassational appeal of the editorial office of the newspaper “Vzglyad” and of journalist Yuliya Nurmagambetova on decision of Leninsky judicial sector of Sovetsky district court of Karaganda city from March 2, 2000, pronounced determination to reserve the decision of the court of first instance without changes.

The editorial office needs to refute the information, acknowledged by the court not corresponding to reality and discrediting the honor and dignity of citizeness Ospanova, also to pay off 20000 tenge in account of compensation of moral damage to the plaintiff.

On May 5 of 2000 city court of Aktyubinsk (headed by Z. Mambetova) examined a civil case on lawsuit of Limited company “Rifma” to V. Skurydin about protection of honor dignity and compensation of moral damage on open judicial meeting. The defendant in the article “Can the paper bear everything?” publicized in the newspaper “Evrika”, wrote the following: “If the citizens would only read “Diapozon”, everybody would have to put his neck into the noose”, “Diapozon” was occupied with purposeful and systematic kindling of artificial horrors in our community, which may cause unforeseen consequences”, “Diapozon made it a rule to give general characteristics to the state based on actions of separate officials, which strangles the business undertakings, occupied with improper business and hostile to its people”, “Kazakhstan’s image is far from the one, which is created by this scandalous newspaper”, “praising each other and edition of “Diapozon”, part of which is destroyed due to non sale”. The court acknowledged all of this information does not correspond to reality, discredits the honor, dignity and business reputation of the newspaper. The court decided to exact 20000 tenge from the defendant in favor of the limited company “Rifma”.

The freedom of views, opinions and believes is guaranteed by the article 20 of the Constitution of the RK, article 2 of Law of RK “About mass media” and, in contradiction to information, these views are not subject to refutation in order of article 143 of the Civil code of the RK.

On April 23 citizeness Tastanbekova appealed to the editorial office of TV company “Otyrar” with written statement about her intention to appeal to court for protection of her honor and dignity. An announcement of the following content appeared in the running line of the TV company: “Who became a victim of scam of citizeness Tastanbekova, please appeal to Enbekshisky District Department of Internal Affairs. A criminal case was initiated against the woman, however no decision of her guilt was made.

A preliminary hearing on lawsuit of the director of production cooperative “Spetsavtotransport” Vadim Bondar son of deputy Akim of Petropavlovsk City, about protection of honor and dignity to municipal TV Radio channel and journalist of this channel Sergei Kuyanov, was conducted. Bondar demands apologies and compensation of 150000 tenge because his name was mentioned during TV story about planned raid of Administration of Internal Affairs against poachers and his hunting ticket was shown on TV. The police stopped the car, which the son of the deputy Akim was driving, because it attracted the attention of the policemen, and, within the framework of the planned event, inspected the hunting arms, documents and the trunk of the car. Bondar’s companion Kovalenko threatened the shooting group (the journalist Sergei Kuyanov and the cameraman Tulegen Imanov) with reprisal and other troubles, also used swearwords. Later he was fined for petty hooliganism.

Nothing criminal was said about Bondar in the TV story, and nothing was found despite of the petty violations in his documents, and he was let go along with his companion.

The judicial meeting regarding lawsuit of the music group ABK to the newspaper “Karavan” about abasement of honor and dignity and discreditation of business reputation and exaction of moral damage in amount of 26 million tenge ended with peace agreement. “Karavan” promised to publicize the musicians’ version of conflict, which became the basis for debatable publications, and ABK lowered the amount of moral damage to one million tenge.

During violations of private non property rights, such as honor, dignity and business reputation, civil law responsibility with power of article 143 of the Civil Code of the RK and decrees of plenum of the Supreme court of the RK from 18.12.1992 #6 and from 22.12.1995 # 10 should be taken in the simultaneous presence of the following circumstances:

- if they discredit honor, dignity and business reputation of the plaintiff from the point of view of his observation of laws and moral principles of the community.

In its decision the court must indicate, which information in particular was not authentic, what the plaintiff is being discredited in, and while defining the compensation amount of moral damage take into consideration the degree of his moral suffering, life importance of violated right, character and sphere of dissemination of false, disgracing information, the degree of fault of both parties of dispute, financial situation of the damager and other circumstances which need to be taken into attention.