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

“Yegemen Kazakhstan”, “Maktaral”, “Akikat”, “Aigak”, M. Begaliyev

Former head of KGB department of Maktaaralsky district K. Yerzhanov submitted lawsuit on protection of honor and dignity to the newspapers “Yegemen Kazakhstan”, “Maktaral”, “Akikat”, “Aigak”, which published material of the journalist M. Begaliyev about abuses of K. Yerzhanov. Former head of KGB submitted claim addressing the journalist in the procedure of private accusation on initiation of criminal case based on the article “Insult”. M. Begaliyev wrote in the article, which became the reason for K. Yerzhanov’s resignation from the position and further lawsuits, that K. Yerzhanov bought himself a house on money, collected from number of joint-stock companies, and exchanged old state UAZ automobile for a brand new Shkoda.

Both the code of criminal procedure (articles 129 and 130 of the code criminal procedure of the RK), and the code of civil procedure (article 143 of the code of civil procedure) talk about the same point - protection of citizen’s honor and dignity. An individual, who considers himself to be a victim, depending on severity of actual and supposed consequences, has to choose a method of protection of personal private non-property rights - criminal legal (case of private accusation) or civil legal method. At the same time, civil lawsuit can be submitted within the framework of criminal procedure. In order to convict a person based on the article 130 of the code of criminal procedure, one needs to prove fact of humiliation of honor and dignity, expressed in inappropriate form, which can hardly be applied in the aforementioned case. To feel insulted and be actually insulted in inappropriate form - are two different things.

“Kazakhstanskaya pravda”, Sergey Gorbunov (Astana City)

Head of the foundation for support of agriculture and former Akim Shebaktinsky district of Pavlodarski region Nurshaliyev submitted lawsuit to Saryarkinsky district court of Astana City. The lawsuit was addressed against the newspaper “Kazakhstanskaya pravda” and its correspondent Sergei Gorbunov, author of the article “Ram became Australian” published in the newspaper on May 17. The article was written based on the material of the city court of Pavlodar City, which examined criminal case on accusation of plaintiffs in abuse of official position. Plaintiffs appealed the decision of the city court in the court of higher instance and submitted lawsuit on the journalist and the newspaper for violation of article of Constitution of the RK, accusing them in influence on court.

Paragraph 1 of the article 25 of law of the RK “On mass media” does actually include norm about responsibility in accordance with legislative acts for mass media’s influence on court. However, not every publication can be ascribed to section “ influence on court”.

Decree of Plenum of Supreme Court of the RK from 14.05.98 #1 “About some issues of use of legislation on judicial power in the RK” (Paragraph 9) interprets it as report of mass media, which is directly or indirectly addressed towards creation of public opinion about rightness of position of one of the parties of judicial process and legality and justice of previous judicial decree, only if court rendered specific decision.

Moreover, actions of dissemination of similar publications constitute administrative violation of rights. Proceeding based on administrative violation of rights is initiated in the procedure of, set by the code of administrative violations of rights of the RK, but not in lawsuit procedure.

Shymkent’s regional TRACE

Department of KGB of South Kazakhstani region initiated a criminal case based on the article 181 paragraph 2, point “b” of the code of criminal procedure (extortion) in regard to responsible editor of regional television and radio company of Saryagashsky, Kazygurtcky and Shardarinsky districts personal correspondent of the same television company and cameraman, working on contract basis. They were arrested at the moment of reception of ten thousand tenge from Berik Oshakbayev, lieutenant of military unit of frontier guards 2020, located in Saryagashky district. Prior to this journalists appealed to him with request to pay 15000 tenge in exchange for videotape, which allegedly had footage of illegal actions of frontier guards during serving on the border.

The article 181 of the code of criminal procedure of the RK provides for responsibility for extortion. Law interprets notion of extortion in this case as “Demand of handing over someone else’s property, or right for property, or taking other actions of property character under menace of violence, destruction or damage of someone else’s property. As well as threat to disseminate information, discrediting victim and his relatives, or other information, disclosure of which may inflict substantial damage to victim and his relatives”.

According to the aforementioned article, someone else’s property is the object of criminal infringement. From subjective point of view, the given constituent elements of a crime can be characterized as direct intention. Isn’t it true that one cannot possibly extort due to carelessness! The meaning of the aforementioned article implies that only a physical individual can be a victim in case of dissemination of disgracing information.

All of this provokes big doubts in basing of initiation of criminal case and correctness of classification of actions of the accused. Indeed, it is difficult to imagine a situation, when well-paid officials of television and radio companies extort fifteen thousand tenge from grass-root lieutenant.

“Aigak”, Darinbai Sharip (Shymkent City)

Editor of the newspaper “Ardak” Darinbai Sharip, sued by the editorial office of the newspaper “Aigak”, didn’t appear on the fourth appointed session of the city court for examination of the lawsuit. The judge of Shymkentsky city court Parmenov rendered the decision about compulsory bringing D. Sharip to court.

Defendant’s failure to appear in court, undoubtedly, is not the best method to solve judicial disputes. According to the article 187 of the code of civil procedures of the RK, court has a right to examine the case during defendant’s absence, properly informing the defendant about time and location of trial session, if there is no information regarding defendant’s failure to appear in court, if the court acknowledges defendant’s reasons of failure to appear in court as unjustifiable or that defendant is intentionally delays court proceeding on the case.

Moreover, with force of the article 119 of the code of civil procedures of the RK, court has a right to such measure of coercion as bringing (compulsory bringing to court), if it acknowledges that defendant is maliciously avoiding to appear in court.

“Yuzhnyi Kazakhstan”, Lyudmila Kovaleva (Shymkent City)

Personal correspondent of the regional newspaper “Yuzhnyi Kazakhstan” Lyudmila Kovaleva appealed to court of Maktaaralsky district with lawsuit to the newspaper “Myrzashol ainasy” and the head of the regional council of veterans. Reason for the lawsuit became the newspaper publication of open letter, where author called the journalist lying and printing sensations, and demanded that she gives back land where she grows cotton, and etc. L. Kovaleva asks the court to recover in her favor from the editorial office of the newspaper 250 thousand tenge and 3 tenge from the head of the council of veterans. It is necessary to note that the head of the district court refused to accept lawsuit statement throughout two weeks.

“Kazakhstanskaya pravda”, Lyubov Dobrota (Shymkent City)

Management of the company “LPG-Ontustik” during its press-conference, conducted in the hotel “Sapar”, announced about its intention to sue the correspondent of “Kazakhstanskaya pravda” Lyubov Dobrota regarding the publication “Dark license and black days of consumers”. The article read that gas-supply company has already received a license in the ministry of power engineering, industry and trade, but did not construct gas-filling station yet. The management of the company announced to journalists that it was a lie and that they did not have any misunderstandings with the office of prosecutor. After the correspondent presented the official response from the office of the general prosecutor confirming illegality of issue of license, the management of the company announced that they did not have such document.

“Express-K” (Almaty City)

The first case hearing on the lawsuit of citizen Baiterekov to the newspaper “Express-K” and Vladimir Severnyi, the author of the articles “Afghan - the pretender” and “Agony”, which questioned Baiterekov’s Afghani past. The plaintiff requests compensation of moral damage to the amount five million tenge.

“Karavan” (Astana City)

Head of the regional edition “Karavan Astana” Nataliya Buravtseva received a claim by means of fax machine from the director of Akmolinsky public association “Consumer Advocate” G. Bykovets. The claim was submitted on the article published in the thirty-first edition “We paid wrong money for wrong heat” in the column “We have got robbed”. The article read that one of courts of Astana City examined a civil lawsuit “Consumer Advocate” to the enterprise “Astana energy service” about incorrect recovery of payment for heat and hot water from population. Bykovets believes that the given article “inflicted moral damage and insult” to the public association “Consumer Advocate” and personally to its head. Due to the fact that the author of the article confused name of the court, which examined the lawsuit, named the public association as the plaintiff and several CSK (cooperative of flat owners), when in reality the plaintiff was the public association. Moreover, the journalist specified wrong date of submission of the lawsuit. According to Bykovets’s opinion, the facts that the editorial office did not specify information source and chose name of the column directed towards insult of the public association “Consumer Advocate”, are demonstrating negligence of the editorial office.

Production center “DOZYN”, Ahmetova Albina (Almaty City)

In June the head of CSK (cooperative of flat owners) “Sever” G. Berestova submitted lawsuit on protection of honor, dignity and business reputation to the program “Communal kitchen”, which is aired on “Channel 31”. The reason for the lawsuit became two stories about faults in CSK’s work, where mainly inhabitants of CSK expressed claims. Berestova evaluated her honor to the amount of four hundred thousand tenge, where three hundred thousand tenge has to be paid by the production center “DOZYN” and hundred thousand by the head of the initiative group of inhabitants Malevannyi. According to Berestova’s words, she just wanted to scare journalists hoping that they would refute the stories when submitting the lawsuit. But because the journalists “did not realize” it, she increased the amount of moral damage to one million tenge to the production center “DOZYN” and included the author of the stories Albina Ahmetova into the list of defendants, submitting claims to five hundred thousand tenge.

“Novoye vremya”, Irina Chernikova (Pavlodar City)

Pavlodarsky regional court rendered decision to send for additional examination the case on the lawsuit of Ms. Krivosheyeva to the newspaper “novoye vremya” for the second time. The reason for appeal to court became the article of Irina Krivosheyeva “Grandmother Anya - princess Shuyskaya”, which tells about insults, inflicted by the plaintiff to her mother.

The decision of the court of first instance about partial compensation of moral damage to Krivosheyeva (seventy thousand tenge instead of requested seven hundred thousand tenge) was appealed by the newspaper in the regional court of Pavlodar City.

When personal non-property rights are violated, such as honor, dignity and business reputation, civil right responsibility with force of the article 143 of the code of civil procedures of the RK and decrees of plenums of the Supreme court of the RK of 18.12.1992 #6 and of 22.12.1995 #10 enters into force only upon simultaneous presence of the following conditions:

- if they discredit honor, dignity or business reputation of a plaintiff from the point of view of his compliance with laws and moral principles of society.

As a matter of fact, information may be false, but not discredit honor and dignity of another person, or discredit him in his subjective perception, but not accuse in violation of laws and moral principles of society. There might other combinations. It is not accidental that law obligates to research and specify in the decision, which information specifically was acknowledged to be false and what does it discredit a plaintiff in. It is necessary to consider degree of his moral sufferings, life importance of the violated right, character and sphere of dissemination of false, discrediting, information, degree of guilt of this or that party of dispute, financial state of the “damager” and other circumstances, which need to be taken into attention while determining the amount of compensation of moral damage.