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

The chief editor of the newspaper “Tvoi shans - Rudnyi” Evgeniy Shibarshin received an order from the city prosecutor E. Baimuhametov, which reported that as result of inspection of regional mass media for correspondence with law about languages, which was conducted according to the task of Kostanaysky regional prosecutor’s office. It was determined that the newspaper “Tvoi shans - Rudnyi” was only published in Russian language, allegedly, thus ignored the law about languages. The prosecutor of Rudnyi City ordered, “to organize functioning of the state language in the newspaper”, and to report about the results of examination of his order to the city prosecutor’s office “within fixed by law one month term”. The order of the regional prosecutor was caused by program on improvement of situation with Kazakh language, announced by the regional Akim U. Shukeyev.

Electronic Mass media

The Minister of press information and public consent Altynbek Sarsenbayev announced that an inspection of all private TV channels has to be conducted, with the object of correspondence with the law about languages, according to which 50 per cent of broadcasting should be made in the state language of the RK.

The problem is that the law does not elaborate whether it is the entire volume of TV programs or only private broadcasting. An information agency “Kazakhstan today” reported, that the Minister implied the entire volume of broadcasting, and to balance the broadcasting in Russian and Kazakh languages, he is going to reduce the time of transmission of TV programs of Russia, which possess the lion share of broadcasting of private TV channels in Kazakhstan.

Electronic mass media

The Minister of culture information and public consent of the RK Altynbek Sarsenbayev explained his position in regard to retransmission of foreign, as well as TV channels of Russia.

According to his words, he was not talking about reduction of broadcasting TV channels of Russia, the issue was about increase of personal broadcasting and within its framework it is necessary to maintain 50 per cent norm of broadcasting in Kazakh language.

At this moment, according to the Minister’s words, the majority of TV channels in Kazakhstan do not maintain the norm about languages, justifying it by lack of professional Kazakh-speaking personnel. The Minister said that they had enough time to prepare the personnel. Moreover, according to his words, all of the Kazakhstani TV channels were given an indulgence in the form of permission to broadcast programs of Russia for untwisting and further production of personal programs, but they prefer mediator functions to development of personal national broadcasting.

The Minister informed that sanctions against TV companies, which violated legislation of the Republic of Kazakhstan, would be undertaken by the General Prosecutor’s Office.

Order of the prosecutor on organization of functioning of the state language imprinting edition in Russian language is not based on law, due to the fact neither law “On languages in the Republic of Kazakhstan”, nor law of the Republic of Kazakhstan “On mass media” include similar demands. Moreover, the article 26 of law “On languages of the Republic of Kazakhstan” says that duties of personnel, logistical, financial and training guarantee of realization of provisions of the aforementioned law are placed not on mass media, but on state organs of the Republic of Kazakhstan. At first sight, things with electronic mass media are a bit more complicated, due to the fact that indeed, the article 18 of law “On languages in the Republic of Kazakhstan” and the article 3 of law “On mass media” demand that volume of broadcasting in state language in time scale was not less than the total volume of broadcasts in other languages. But this is only the first impression. When making a decision about count off point - personal programs or total time of broadcasting - one should not forget that only one organ has a right to interpret law, the one that produced this law, i.e. parliament. Besides, broadcasting is often made by joint enterprises, foreign investors, which according to law of the Republic of Kazakhstan “On foreign investments” are using guarantees of further non-deterioration of their situation.

“Kazakhstanskaya pravda”

On June 21 during plenary meeting of Mazhilis deputies A. Aytaly, Z. Abdiyev announced their deputy request for the name of the President of the Republic N. Nazarbayev. According to deputies, the newspaper “Kazakhstanskaya pravda” on June 14 of this year published the material of the lawyer Aleksandr Pankov “Supreme official of local scale” and on April 12 the material (without signature) “The President defended entrepreneurs”, “Covering by the President’s name, he puts pressure on judicial instances”. The request was passed to the administration of the leader of the state.

Paragraph 1 of the article 25 of law of the Republic of Kazakhstan “On mass media”, does actually include the norm about responsibility in accordance with legislative acts about influence of mass media on court. However, not every prejudicial publication may be classified as “influence on court”. The decree of the chairman of the Supreme Court of the Republic of Kazakhstan of 14.05.98 # 1 “On some issues of legislation use on judicial power in the Republic of Kazakhstan” (paragraph 9) implies a report of mass media, which is directly or indirectly directed toward creation of public opinion on correctness of position of one of the parties of the judicial process and on legality and justice of future judicial decree, only in case of definite judicial decision.

Weekly “Novyi vestnik”, Karaganda City

In the eleventh issue of the weekly “Novyi vestnik” of June 14, 2000 the article “Damski ugodnik”, which talked about the citizen of Karaganda, who earned money by providing intimate services. In particular, answering to the correspondent’s question where does he find the clients, the interviewed said: “reception lady in the hall of the hotel “Karaganda” has my business card… I even do not know how it happened to be there. But I have a lot of clients from there…”

The owner of the hotel “Karaganda” of the joint-stock company concern “Yerlovo” submitted the claim to the editorial office of the newspaper demanding “to place apologies and refutation on use of unverified facts about spreading of business cards of the article’s hero. In the opposite case, the owner of hotel promised to appeal to court for slander on the employees of the hotel “Karaganda”.

The editorial office of the newspaper offered its apologies in the article “What does it mean: me” published in the issue # 12 (12) of June 21,2000.

“Novoye vremya”, Irina Chernikova, Pavlodar City

Hearings on case initiated against the newspaper “Novoye vremya” and the journalist Irina Chernikova are reopened in Pavlodarski city court. The plaintiffs, the chairman of the Cooperative of Flat Owners (CFO) “Gloriya” Hasanova and the accountant of this CFO changed the wording of their claim. Earlier they filed the lawsuit to court about defense of honor and dignity with recovery of moral damage in 2 million tenge, now, after judicial sessions were postponed in connection with their failure to appear in court, they accused the newspaper and the journalist in slander.

The reason for the appeal to court became the publication in the newspaper of journalist investigation Irina Chernikova “How to steal a million?” on stealing in CFO.

“Nachnem s ponedelnika”

The court of Almaty City left decision of Almolinsky district court on private accusation of the chief editor of the newspaper “Nachnem s ponedelnika” V. Marchenko and the founder of the same newspaper, director of the Limited Responsibility Partnership “Esergepov & Co” R. Esergepov in slander by the editor of the newspaper “Dozhivem do ponedelnika” E. Nurshin, without changes. The reason for the article became the phrase from the article R. Esergepov “About stealing use of intellectual property by Nurshin".

In compensation of moral damage the court defined to recover fine of 290000 tenge, moral damage of 10 million tenge, from each: Marchenko and Esergepov, and 30 million tenge from the legal entity “Esergepov and Co’”. Private property of U. Marchenko and Esergepov has been arrested. In practice of Kazakhstan there were no similar decisions on recovery of such large amounts from mass media.

Responsibility for slander is provided for by article 120 of the Criminal code of the Republic Kazakhstan. Slander is “spreading of known to be false information, which discredits honor dignity and reputation of another person”. As it appears from the aforementioned text of norm, the classifying principle of the given constituent elements of a crime is known to the spreader falsehood of the information disseminated by him. Consequently, from the subjective point of view guilt of the spreader may be possible only in the form of direct intention: he knew that he spread discrediting information and he deliberately strove to it.

If we also consider that cases on slander are classified by the article 33 of the Code of Criminal Procedure of the Republic of Kazakhstan under the category of cases of private accusation, where a victim is recognized as a private accuser and burden of proving of guilt of opposite party lies on him, one should not be surprised that the majority of such cases ends up by withdrawal of accusation. He aforementioned cases are not exceptions, except for the last one, which, in our opinion, can hardly be called legal. Indeed, it is difficult to imagine, and the more so as to prove irrefutably, that Mr. Esergepov spread false information, being fully aware of its falsehood. Recovery of moral damage of aforementioned amounts also is not well grounded.

TRK “Alau”, Kostanai City

The first hearing of the case on the lawsuit of the chairman of Board of the joint-stock company “Kostanai regional gas” Mr. Tanzharikov to the citizen L. Mihina on the article 130 part 2 of the Criminal code of the Republic of Kazakhstan (insult in mass media).

The reason for the appeal to court became the story of the journalist of TRK “Alau” Oleg Felzinger from the elemental meeting of former employees of the joint-stock company “Kostanai regional gas”, which demanded from the leadership of the enterprise legal payments obligatory during dismissal. The plaintiff was insulted by the words addressed to him by the participant of the meeting L. Mikhina: “he has a big paw and I have a small one”, and “he is probably crazy”.

For the first time throughout history of TRK “Alau” the journalist, who prepared the story was invited to court as the witness, not as the defendant.

Although the plaintiff could perceive the aforementioned facts insulting, in our opinion, they cannot be the basis for either criminal law or civil law responsibility. For criminal law responsibility it lacks the main classifying principle, required by the article 130 of the Criminal code of the Republic of Kazakhstan, expression in indecent form. With the force of the article 20 of the Constitution of the Republic of Kazakhstan, the article 2 of law “On mass media” and the article 143 of the civil code of the Republic of Kazakhstan may not be applied in connection with the fact that state0ents of the defendant in its essence are estimation statements (opinions), but not information.