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

Film-crew of the TV Company “NTK - Karaganda” was reporting from city auto race. Company BIPEK-AVTO was financing the event. Cars of this company participated in races, however participant on old HONDA became the winner. Despite of this fact, the first prize was given to sportsman, who raced on car with BIPEK-AVTO brand. Journalists of the film-crew became the observers of the scandal, which flared up. The head of the company recommended them to “stop shooting and not to broadcast the material on air”. “In the opposite case…” the journalists were warned: ”we’ll sue you and make you pay big amounts as recovery of the damage inflicted”.

The article 20 of the Constitution of the RK guarantees citizens, including journalists, freedom of speech, freedom of reception and dissemination of information. Simultaneously, the articles 2 and 17 (paragraph 3) of law of the RK “On mass media” applicable to the aforementioned cases, clarify, that nobody has a right to prohibit an editorial office to publish, or vice versa, to obligate to publish specific information.

“Ak Zhayik” (Atyrau City)

The newspaper “Ak Zhayik” appealed to the regional prosecutor M. Zhorgembayev on June 6 with request to provide legal evaluation of the decision taken by leaders of the joint-stock company “Atyrau regional gas” regarding disconnection of gas-supply in apartment complexes. The request was repeated after one month. However, the editorial office did not get any response from the office of regional prosecutor.

The prosecutor did not respond or take corresponding action towards the report of the editorial office, thus, he did not fulfill his main service obligation - to supervise over compliance of citizens’ rights and freedoms, assigned to him by section IV of law of the RK “On prosecutor’s office”. He also did not fulfill his obligations as state employee, assigned by the article 9 of law of the RK “On state service”.

“Express K”, Lidiya Yerzhanova (Almaty City)

Judge of Auezovsky district court Kaliyev did not allow correspondent of the newspaper “Express K” Lidiya Yerzhanova to attend open trial session.

“Vremya”, Vyacheslav Kulikov (Uralsk City)

According to the order of the head of the state court F. Kurmanova, admission of visitors in Uralsky city court is carried out on the basis of permits. The only pass for entering the building for all citizens without exceptions, including journalists, may be a writ to court.

The correspondent of the newspaper “Vremya” Vyacheslav Kulikov was not able to attend open trial session on the lawsuit “Regional communists against Akim of Uralsk City”.

Glasnost principle of court proceeding in Russian federation is provided for by the Constitution of Russian federation, which restrains arbitrary rule of official administrators to some extent. In Kazakhstan this principle is provided for by the article 29 of the code of criminal procedure and 19 of the code of civil procedure, thus, it is not constitutional, and its protection, consequently, is more difficult. So, according to the article 19 of the code of civil procedure, examination of civil cases in all courts and all trial instances should be conducted openly. Examination of case in closed trial session is to be conducted only based on special court order and with presence of adequate legal grounds. However, in practice it is often decided arbitrarily and based on oral order of a judge. Pass system is introduced almost everywhere in courts of second instance based on writs or permit from a judge. All of this almost brought to naught one of the main principles of modern court proceeding - principle of glasnost of court examination.

“Ak Zhayik”, Viktoriya Li (Atyrau City)

The newspaper “Ak Zhayik” published Viktoriya Li’s article “Where should Lyudmila live?” - about a woman, who after spending half a year in neurological department of regional hospital, has nowhere to live. The article also mentioned office of city prosecutor, which did not respond to appeal of medical employees to provide assistance in determining the patient’s further place of residence.

After publication of the article, employees of city prosecutor’s office sent telephoned telegrams to the editorial office three times throughout one week, which obligated Viktoriya Li come to the prosecutor’s office and see the head of the department M. Tulenbayeva. However, V. Li did not “go”, after coming to conclusion with chief editor that relationships between the editorial office and prosecutor’s office in the given case should not be based on calls of journalist to prosecutor’s office.

The editorial office did not receive official refutation on publication “Where should Lyudmila live?” from the city prosecutor’s office.

Prosecutor’s actions in the aforementioned case are not based on law and are unethical in its essence. Notion “prosecutor” comes from Latin word “procurore”, which means “I defend”, consequently, he is the defender, not the accuser. The article 83 of the Constitution of the RK placed duties on prosecutor on conduction of highest supervision over accurate and uniform utilization of laws and other normative legal acts, as well as legality of actions of state bodies, organizations and citizens. Law of the RK “On prosecutor’s office of the RK” endowed prosecutors with corresponding powers, which goal is to eliminate violations of legality. In order to substantiate his actions the prosecutor referred to the article 29 of law, but he probably forgot that the named article is part of section “Supervision over compliance of rights and freedoms of human and citizen, interests of legal entities and state”. The article itself begins this way: “while conducting supervision a prosecutor has a right to…” - what kind of supervision can we talk about here, when the point is faults in personal work. Illegal and unsubstantiated acts and actions of the prosecutor according to the article 8 of law “On prosecutor’s office of the RK” may be appealed in court.

“Otyrar Algaby” (South Kazakhstani region)

On the session of district maslikhat of Otyrarsky district of South Kazakhstani region deputies made a decision to ask district Akim to pass building, where the editorial office of state district newspaper “Otyrar Algaby” was accommodated for many years, to one of the district veterans for housing.

Maslikhat’s decision, as of representative body, on seizure of mass medium’s property is unethical. Moreover, it’s not based on law, due to the fact that this sort of issue is not under jurisdiction of the representative body. Moreover, if in the end competent body makes this decision, mass medium, as its legal owner, has a right to appeal to court for possible damages.

“Svoya gazeta” (Shymkent City)

Each member of the editorial office of the first independent newspaper “Soya gazeta” was sent on vacation without payment. At the same time term of forced downtime was not discussed. The newspaper staff did not get paid since December of last year, if we don’t count 1000-2000 tenge advances. Abrupt recession of edition and worsening of economic state of the editorial office explain suspension of the newspaper’s production.

According to the article 76 of law “On labor in the RK” salary has to be paid not less than once a month.

When salary payment is delayed due to employer’s fault, salary can be recovered by trial with calculation of fine based on stake of refinancing, set by the National bank of the RK. When there are no means for recovering amounts set by court, these amounts have to be recovered from the debtor’s property.