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

The article “Will a daughter-in-law, who hurt her father-in-law, be lucky?” of the journalist Mayra Shuanshaliyeva was published on February 9 2000 in Kazakh-speaking newspaper of West Kazakhstan region “Oral oniri”. The article narrated the story of the old man living in the house for disabled people with disability of the first category, hurt by his own daughter, who deprived him of home. The author of the article did not specify either first name or surname of the old man’s daughter (he had two of them).

One of the daughters of the hero of the material – Gulfairaz Zhubangaliyeva, filed the lawsuit against the author and the newspaper on inflicted damage to her honor and dignity, because she recognized herself in the article. The editorial office proposed to Zhubangaliyeva (before she submitted the suit to court) to state her claim in written form with specification of the words in the text, which she considers to be discrediting to her honor and dignity. However, Zhubangaliyeva did not submit the written claim to the editorial office and appealed with lawsuit directly to the court.

The judge of Uralsk city court T. Urazova on April 4 2000 satisfied the suit of Zhubangaliyeva and bound over the editorial office to publication of refutation and payment of compensation to the plaintiff to the amount 20000 tenge.

The editorial office submitted cassational claim, however, the board of the district court left the decision of the city court in force.

According to the paragraph 4 of the decree of plenum of the Supreme court of the RK from 18.12.1992 # 6, person who thinks that his private non property rights have been violated, has a right for judicial defense also in case if surnames of particular individuals were not specified in publication, but one can understand from text that is being described, in other words, the person is objectively recognizable. At the same time in accordance with the article 141 of the civil code of the RK, the person who submitted demand on protection of honor (plaintiff), is obliged to prove fact of violation of his private non-property right or his recognition. And the plaintiff, in turn, is obliged to prove authenticity of published information.

Hearing of the case of head of local company “Energy” against the Newspaper ”7 Days” and the regional administration of tax police goes on in city court of Ust-Kamenogorsk. The head of “Energy” Yuriy Tsibenko accuses the newspaper that the article, published on June 5, 1997, of the former head of administration of tax police Kamlet Beisov contained information which did not correspond to reality and was discrediting to his business reputation. Tsibenko evaluated damage from the publication to the amount 20 million tenge.

“Aviatrek”, limited responsibility partnership “Reklama-press” (Karaganda)

In May of this year Mr. Hvatov appealed to court of Sovetsky district of Karaganda City with lawsuit on protection of honor, dignity and business reputation to the weekly “Aviatrek” and the limited responsibility partnership “Reklama-press”. The plaintiff considered information, published in the official report of incidents, presented by the city administration of internal affairs of Karagandinsky region, not corresponding to reality, discrediting his honor and dignity. The plaintiff also requested to recover moral and material damage from the weekly “Aviatrek” to the amount 50000 tenge, from the city administration of internal affairs to the amount 45000 tenge and 5000 tenge from the limited responsibility partnership “Reklama-press” and the founder of the newspaper “Novaya reklama”. The court of the first instance, having examined the lawsuit statement, entirely declined the plaintiff’s demands. In July cassational instance left the decision of the court of first instance in force.

Conditions and cases of relief of mass media from responsibility for publication of false information are listed in the article 26 of law of the RK “On mass media”. Thus, they do not bear responsibility for dissemination of false information, if this information is word-for-word reproduction of official speeches of deputies, representative organs, official persons of state structures, organizations and citizens, or contained in official reports or documents. At the same time, it is necessary to remember, that in similar cases relief of mass media from responsibility does not exclude independent responsibility of these organizations and their official individuals, as direct distributors of false information.

“Vechernyaya gazeta” (Karaganda)

Sovetsky district court of Karaganda City rendered definition on lawsuit of the citizen Yurkin V. B., the former head of Karagandinsky regional administration of economics and development of entrepreneurial activity, on protection of honor, dignity and business reputation and recovery of moral damage from the editorial office of “Vechernyaya gazeta” to the amount 25000 tenge (see the monitoring for June). The plaintiff petitioned on return of his lawsuit without examination of case. The court satisfied the plaintiff’s petition.

Civil case procedure terminates in case of the plaintiff’s rejection of lawsuit and court’s adoption of rejection. Secondary appeal to court on dispute between the same parties, on the same subject and on the same grounds, is not allowed.

“Sana”, Zhumabike Zhunusova (Karaganda)

Coal department of the joint stock company “Ispat-Karmet” and the editorial office “Miner’s week” submitted claim to the editorial office of the newspaper “Sana” on the fact of dissemination of false information. The point is the conflict situation between employees and administration at the moment of unification of two subdivisions of coal department of the joint stock company “Ispat-Karmet” during winter of 2000.

Journalists of the weekly “Sana” conducted investigation according to the task of the editorial office on authenticity of information, contained in the collective claim of employees of the enterprise. The check showed that the fact, listed in the letter, were false.

The chief editor of the weekly “Sana” Zhumabike Zhunusova refused to publish materials on this topic, in order “not to tarnish” reputation of the newspaper. Nevertheless, the printing organ of coal department of the joint stock company “Ispat-Karmet” – the newspaper “Miner’s week” published the article “I can – means I will do” with signature of the chief editor A. Voyeikova, where he accused the weekly “Sana” in dissemination of false and discrediting business reputation of the joint stock company “Ispat-Karmet” information. According to the words of the chief editor of “Sana” Zhumabike Zhunusova, such actions in regard of one newspaper to another she evaluates as manifestation of unfair competition, which led to loss of advertisers and part of readers. Moreover, coal department of the joint stock company “Ispat-Karmet” “threatened” the editorial office with judicial examination and excessive compensation amount as recovery of moral damage.

Law, in particular the article 143 of the civil code of the RK, protects citizens and legal entities upon violation of their private non-property rights, caused by dissemination of false, discrediting honor, dignity and business reputation, information. The newspaper can disseminate information only by means of its publication. If such did not take place, we need to recognize that there was no violation of private non-property rights.

“7 Days” (Ust-Kamenogorsk)

The senior assistant of the prosecutor of east Kazakhstan region Antonina Kilyushek invited the editor of the newspaper “7 Days” Vadim Obuhov to her office, and expressed her claims in regard to the fact that advertising of wine and vodka products are accompanied by very small font in the newspaper, and she “cannot read without glasses”. She demanded that inscription on damage of alcohol would not only be typed in large font, but also included in module of the advertisement. Vadim Obuhov explained to Antonina Kilyushek that law does not regulate the font of the warning inscription, and according to law, the inscription itself must “accompany” advertisement and not be included in the module. After the editor of “7 Days” promised to appeal to court in this regard, the assistant of the prosecutor limited herself to oral conversation. No sanctions followed.

KAR-TV-3 (Karaganda)

The television channel KAR-TV-3 starting from June 23 broadcast on the air advertising video clip of Karagandinsky State University named after E. Buketov. The advertising clip produced on the television channel Kar-TV-3, contained impolite comparison of the University with other educational institutions of the city, in particular, with “Gylym” University. Principal of the University “Gylym” N. Zhumageldinov appealed to the regional television and radio company with prejudicial claim on fact of dissemination of unfair advertisement.

Law “On advertisement” in the Republic of Kazakhstan has not been adopted till now. The norms of law of the RK “On mass media” does not contain any instructions on the size of the font of warning inscription on damage of alcohol and tobacco products. The only thing that is required is that the text of the warning would be distinctive. The article 11 of the civil code of the RK does not allow impolite comparisons of goods, as well as misleading of consumer. In this regard the above cases can hardly be referred to as unfair advertisement.