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

The city administration of internal affairs of Petropavlovsk City has been conducting investigation from April, 2000 on the statement of the ex prosecutor of Timiryazevsky district of North Kazakhstani region A. Zhanakova, who accused the personal correspondent of the newspaper “Karavan” Zaure Zhumaliyeva in slander. The city administration of internal affairs often calls out the journalist for many hours of conversations, during which its employees persistently offer to agree on amnesty and thus terminate the case. Meanwhile, Zhumaliyeva did not sign decree about initiation of criminal case. She refused to come in response to the telephone invitation on July 16 and reasoned it by saying that she needed an official writ. There were no writs or telephone calls afterwards.

On May 23, execution procedure was initiated against Zaure Zhumaliyeva’s non-execution of decision of Shalakynsky district court on offering of public apologies to the ex prosecutor of Timiryazevsky district of North Kazakhstan region Zhanakov and recovery of moral damage.

On June 9 the Supreme Court of the RK suspended the execution procedure on the decision of Shalakynsky district. In order to execute the decree of the Supreme Court of the RK the judicial executor Tlegenov rendered similar decree, however, the city court, which earlier received the first decree on bringing Zhumaliyeva to administrative responsibility, did not receive the second decision on its cancellation. Tlegenov simply did not send it. Zhumaliyeva not knowing this went on business trip. On June 16, while she was absent, session of the city court took place, and due to the fact that the judge A. Nutpayeva, was not fully informed, she brought Zhumaliyeva to administrative responsibility, fine to the amount 7250 tenge. The journalist was not informed about this.

On July 24, the judicial executor Tlegenov, who categorically demanded voluntary execution of this decision, called out Zhumaliyeva. On July 26, Zhumaliyeva submitted claim to regional court of North Kazakhstan with request to cancel the decree of the city court regarding the fee.

“Do e posle ponedelnika” (Almaty)

Presidium of Almaty city court changed verdict of Almaty district court in regard to the newspaper “Do e posle ponedelnika”, its director R. Yesergepov and the chief editor V. Marchenko on accusation in slander.

The decision to recover 30 million tenge from the editorial office and 10 million tenge from each Yesergepov and Marchenko in compensation of moral damage, was cancelled, as not corresponding to the criminal process. Imposition of fine, on Marchenko and Yesergepov to the amount 290000 from each, remains in force.

The article 120 of the criminal code of the RK provides for responsibility for slander. “Spreading of known to be false information, discrediting honor and dignity or business reputation” is recognized as slander. As it may be seen from the text of the norm, the classifying indicator of the given constituent element of a crime is known to a spreader falsehood of information. Consequently, from the subjective point of view guilt of the spreader may be possible only in the form of direct intent: he knew that he spreads false discrediting information and conscientiously strove for it.

If we also take into consideration that cases on slander are referred to the article 33 of the Code of criminal procedure of the RK, category of cases of private accusation, where the victim is recognized as private accuser and the burden of proving the guilt of the opposite party lies on him, we should not be surprised that the majority of such cases end up with withdrawal of accusation. Inquiry and investigation in this category of cases are also designated and conducted only based on court’s definition, and not on the initiative of the prosecutor or investigator.

As to bringing the journalist to the administrative responsibility, law reads, during suspension by the higher court of execution of decision of lower court, it is not subject to execution until settlement in essence of the issues raised in the statement. Consequently, refusal of voluntary execution of the decision during this period does not constitute constituent elements of any violation of law, and decree on administrative punishment is subject to cancellation.

“Novoye vremya” (Pavlodar)

Cassational judicial instance cancelled decision of court of first instance on the lawsuit of the citizen Krivosheyeva on protection of honor and dignity and compensation of moral damage to the amount 70000 tenge to the newspaper “Novoye vremya” and the journalist Chernikova in regard to the article “The grandmother Manya – princess Shuyskaya”. The article talked about insults, made by the plaintiff Krivosheyeva to her own mother. The claims of the plaintiff were recognized as insolvent, request in recovery of moral damage was denied.

“Novoye vremya” (Pavlodar)

The city court of Pavlodar decreed to partially satisfy the lawsuit of the director of Pavlodarski machine construction works Y. Savchenko to the newspaper “Novoye vremya” and the journalist I. Chernikova on protection of honor and dignity and recovery of moral damage to the amount 100000 tenge (instead of one million, which were estimated by the plaintiff as evaluation of dignity). The newspaper appealed the decision and addressed the public prosecutors office with the statement on initiation of criminal case on facts, mentioned in the article.

“7 Days” (Ust-Kamenogorsk)

The leader of the open joint-stock company “Serebryanskaya cement company” Ravil Vashenko sent the claim to the editorial office of the newspaper “7 Days”, where he argues that the newspaper published information about situation in the open joint stock company, which damaged business reputation of the company.

In fact, on June 2, 2000, open letter of former stockholders of the open joint stock company “Ust-Kamenogorsk cement works” (which subsidiary enterprise before bankruptcy was “Buhtarminskaya cement company”) was published in the newspaper, where they asked law enforcement organs of the Republic, of East Kazakhstan region and the newspaper (total of seven addresses) to find out why they have not been paid their dividends on stocks. The letter was published without any editorial comments. The editor of “7 Days” Vadim Obuhov believes that the newspaper did not violate norms of law and moral, because the stockholders actually have not bee paid the dividends. Thus, the information reported by the authors of the letter was true.

Ravil Vashenko is going to appeal to court.

“Vzglyad”, Sergei Perhalsky (Karaganda)

The article of the journalist Sergei Perhalsky “Malaya Saran is up in arms” was published in one of the June issues of the newspaper “Vzglyad”, which talks about complex relationship between the inhabitants of the village Malaya Saran and the administration of the mine “Saranskaya” of the company “Ispat-Karmet”. The director of the mine “Saranskaya” Mr. Bobnev thought that “the author of the article intentionally reported false facts, and in some cases specified known to be false information” and demanded to refute slanderous information, disseminated by the newspaper and the journalist.

The article “Malaya Saran. Let’s talk without emotions”, the reply to the claim “Ispat-Karmet”, was published in the issue 28 (118) of June 12, 2000. The editorial office did not think that it was necessary to refute information, collected in the course of the journalist investigation from the inhabitants of the village and confirmed on documents.

‘Vechernyaya gazeta”, Tatyana Voyevod (Karaganda City)

On July 20, 2000 the article of Tatyana Voyevod “I will sue you for such gas” was published in the newspaper “Vechernyaya gazeta”, which talked about poor quality services of the joint stock company “Alau trans gas” to the inhabitants of one of the districts of Karaganda City. On July 24, 2000 the editorial office received the claim from the limited responsibility partnership “Karagandinsky administration of gas supply” of the joint stock company “Alau trans gas”, where the director A. N. Ospanov states that the author of the article during preparation of material used unchecked information. According to the journalist, during preparation of the material she used information collected on the general meeting of the inhabitants of this district and taken from the minutes of this meeting.

In case of non-execution of the demands of the limited responsibility partnership “Karagandinsky administration of gas supply” of the joint stock company “Alau trans gas” threatens with judicial examination and large material costs.

“Dozhivem do ponedelnika”, E. Nurshin

Widow of the famous scientist and writer A. Zhovtis is going to file lawsuit on protection of honor and dignity of her husband to the newspaper “Dozhivem do ponedelnika” and the author of the published article “To the memory of Dombrovsky” E. Nurshin, who accused A. Zhovtis in denunciation during the thirties on the writer Yuriy Dombrovsky.

During violation of personal non-property rights, such as, honor, dignity and business reputation, civil law responsibility by force of the article 143 of the civil code of the RK and decrees of the plenums of the Supreme Court of the RK from 18.12.1992 # 6 and from 22.12.1995 # 10 only comes when all of the following conditions are present:

- if it discredits honor, dignity or business reputation of the plaintiff from the point of view of his compliance with law and moral principles of community.

It is true that information may be false, but does not discredit honor and dignity of other person, or discredit him in subjective perception, but not accuse in violation of laws and moral principles of society. There might be different combinations. It is not accidental that law obliges to investigate and specify in decision which information, in particular, was recognized as false, how do they discredit the plaintiff. And during definition of amount of recovery of moral damage to take into consideration degree of his moral suffering, life importance of violated right, degree of guilt of both parties of dispute, material situation of the damager and other circumstances, which need to be paid attention to.

“Aigak” (Shymkent)

There are two lawsuits to the newspaper “Aigak” in Shymkentsky city court. The first one belongs to the enterprise “Kazbaspasoz”, which was sharply criticized by the newspaper for unscrupulous competition. The enterprise’s suit constitutes 5 million tenge. The second suit was submitted by descendents of the famous politician Yernazarov, who was repressed in the thirties, in response to the article in the newspaper of the famous writer M. Shahanov. The descendents of the politician filed the suit to the amount 4 million tenge.

On July 20, the editorial office of the newspaper “Ustinka plus” received a claim from the judicial guards Kabden Akanov.

On April 14, 2000, the article “Open trial in closed central prison” of E. Edebi, was placed in the fifteenth issue of the newspaper. On the whole, the author of the claim states: “the article has slanderous and insulting character in regard to court and participants of the process. The article includes fabrications, which refer to me personally. The paragraph reads: “The guard Kaban Asanov was rushing back and forth in narrow passages and severely growled on operators and photo correspondents, who were approaching to the “cage with rebels”. The author intentionally changed my name from Kabden to Boar. Calling me “Boar”, the author intentionally put in quite definite insulting and humiliating meaning. I did not receive any claims from the participants of the trial. When the process is over and the sentence comes into legal force, I demand, that the editorial office of the newspaper “Ustinka” and the author of the article offer me their apologies… I ask to give me the real surname of the author of the article”.

“Ak Zhayik” (Atyrau)

The author of the article “The operation Pipe” or “Why the policemen did not break through?” Azamat Maitanov, criticized rigmarole in investigation of criminal case on theft of watering pipes in gardening partnership “Geotex”. The deputy of the administration of internal affairs M. Amirov called out Azamat Maitanov, under some imaginary reason, to his office and demanded refutation of the article, and then announced his hostility towards “all these newspaper writers”. A. Maitanov proposed him to send a text of refutation to the editorial office, prepared by employees of police, so that the newspaper could consider it within the legal order, provided for by law “On mass media”. There was no official refutation from the administration of internal affairs.

The article 20 of guarantees freedom of views, opinion and beliefs the Constitution of the RK and the article 2 of law of the RK “On mass media”, during their dissemination civil law responsibility does not come and they, in comparison with information, are not subject to refutation. Really, is it possible to refute point of view, belief, hyperbole or metaphor, used in evaluation judgment? Evidently, they might be disputed, by contrasting another point of view in public, but the cannot be refuted, due to the fact that they are not facts.

The ministry of defense of the RK announced that it is going to sue the television channel KTK for false information. The reason for this became the broadcasting of “Evening news” on July 21, 2000. According to the statement of the head of the department of the ministry of defense V. Tsoy, critical information of half-year remoteness was presented as operative, which discredits business reputation of the ministry.

The publication of outdated information without corresponding specification, undoubtedly, provokes definite questions. However, the operating legislation today does not set any terms, upon expiration of which the information becomes obsolete and is not subject to publication. In this regard, it is not likely that one might be brought to civil law responsibility for dissemination of outdated information as false, even if it is not in the contemporary context.