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

The correspondent of the newspaper “Soldat” Karishala Asan-ata was taken under escort to the senior investigator on highly important cases of military investigational department of the Ministry of Internal Affairs of the RK P. Tepsayeva. According to investigator’s explanation was “bothered” as a witness in regard to the article written by him “College student of planetary scale”, which was never published in connection with arrest of edition of the newspaper “Soldat” of June 6 2000. Tepsayeva explained that the article was examined from philological point of view and it was found that it had indications of insulting honor and dignity of the President of the RK.

Asan-ata announced that he would answer investigating questions only upon presence of his lawyer.

Articles 319 and 318 of the criminal code of the RK, which provide for responsibility for infringement of honor and dignity of national selected individuals - deputy and president - are placed in the chapter 14 of Special part of the criminal code of the RK “Crimes against order of management”. Object of criminal infringement in this case is, consequently, not an individual, but set order of management.

In this connection formulation of the article 319 is clear and understood: infringement on honor and dignity of the deputy of the parliament of the RK upon execution of deputy obligations or in connection with their execution”, meaning only upon execution or in connection with them. And if we also consider that insult with force of the article 130 of the criminal code of the RK is humiliation of honor and dignity only in unacceptable form, than the law also makes sense. Indeed, it is not possible to insult national selected individual in public upon execution of his service obligations.

The article 318 “Infringement on honor and dignity of the President of the RK”, in comparison with the article 319, is formulated as broadly as possible, and upon will it is possible to subject any deeds under this article. So, under infringement the aforementioned article understands - “public insult or another (analogous or any other?) infringement on honor and dignity. If it is any other infringement, than the given corpus delicti will include a crime against order of management, as well as any violation of such personal non-property rights, as honor and dignity, protecting which for normal people and in all civilized countries is carried out only in civil order. And if we also consider that the notion “other infringement” permits incomplete corpus delicti and non-careful form of guilt, then it’s clear why some officials use this article more often.

A. Begaliyev (Shymkent City)

On September 20, criminal case based on the claim of the judge U. Abdraimova was initiated in regard to the journalist A. Begaliyev for slander. Last year Begaliyev published a n article that head of district department of department of KGB B. Yerzhanov illegally privatized house and automobile. Yerzhanov refuted the accusations through the same newspaper and called Begaliyev illiterate and blackmailer. The journalist appealed to court with lawsuit on protection of honor and dignity and lost the case. After this the court initiated a criminal case against the journalist.

“Kazkhskaya Pravda”, Aldan Aimbetov

Simultaneously with initiation of criminal case against the editor of the newspaper “Kazkhskaya Pravda” Aldan Aimbetov on insult of honor and dignity of the President of the RK the office of prosecutor initiated a criminal case against him on insult of honor and dignity of the editor of oppositional newspaper “XXI century” B. Gabdullin. After this B. Gabdullin appealed to military investigational department of the Ministry of Internal Affairs of the RK with official statement, demanding to suspend initiated allegedly in his interests case, because he did not appeal to initiate it.

Cases on accusation in slander and insult (articles 129, 130 of the criminal code of the RK) refer to category of case of private accusation. Such cases, according to articles 332, 389-395 of the criminal code of the RK, are initiated only on statement of a victim by submission of corresponding claim directly to court.

“Novoye vremya”, Irina Chernikova (Pavlodar City)

Court of first instance partially decreed to satisfy (10 %) the lawsuit of son of director of Pavlodarski machine-building works Andrei Savchenko to the newspaper: Novoye vremya” and the journalist Irina Chernikova, the author of the article “Saint family”, which talked about family management and other administrative violations on the works. NO amount of moral damage constitutes 50 thousand tenge, not 500 thousand tenge, as it was requested b the plaintiff.

Small enterprise “Intimak”, activity of which was also criticized in the article, the court refused to accept the lawsuit.

The newspaper did not agree with the court’s decision and submitted cassational claim.

“Va-bank”, Marat Shantimirov (Petropavlovsk City)

The newspaper “Va-bank” throughout the summer published series of materials of journalist Marat Shantimirov regarding illegal actions of Akimat of Petropavlovsk City in regard to transport enterprises of the city, in particular, about conduction of illegal tenders on “fast” routs. In each article the journalist addressed specific questions to Akim of the city Peter Hodeyev. None of the questions were answered.

The only reaction to the article was visit to the editorial office of the newspaper “Va-bank” by Mr. Zorin, who introduced himself as defender of rights and interests of the administration of passenger carrier at the city Akimat. Zorin informed that on behalf of this structure he is going to submit a lawsuit on protection of honor, dignity and business reputation of the administration.

The treat was left unfulfilled, because in the second decade of September procedure of passenger carriers against the administration was finished. Entrepreneurs won the case. The court recognized tender, conducted by the city Akimat in May of 2000, as illegal and cancelled its dissemination of routs.

“Ustinka”, Sergei Vasiliyev (Ust-Kamenogorsk City)

First hearing of the case on lawsuit on protection of honor and dignity of judicial guard Kabden Akanov to the newspaper “Ustinka” and the author of the article “Open trial in closed central”, who distorted his name and called him Kaban (Boar), was conducted. Kabden Akanov is not satisfied with publication of apologies of the author and the article, and requests a compensation of moral damage to the amount of 725 000 tenge to be paid by the defendants.

“Karavan”, Zaure Zhumaliyeva (Petropavlovsk City)

On September 27 new trial procedure on protection of honor and dignity of the former prosecutor of Timiryazevski district A. Zhanakov against the newspaper “Karavan” and the journalist Zaure Zhumaliyeva began. This time reason for this became the articles “Barons of Timiryazevo” and “Suspend investigation”, which talked about abuse of the former prosecutor and about prolongation during production of criminal cases on facts, exposed in the result of journalist investigation of Zaure Zhumaliyeva. The total amount of lawsuits on this case to the newspaper “Karavan” constitutes 440 million tenge.

Lyudmila Kovaleva (Shymkent City)

On September 7 peace agreement on lawsuit of the journalist L. Kovaleva to the head of Zhetysuyski city council of veterans T. Zholdasov was signed in court of Maktaaralski region. In the thirty second issue of the newspaper “Myrzashol ainasy” published refutation, where T. Zholdasov offers his apologies for inflicted moral suffering and refutes accusations addressed to L. Kovaleva, as not corresponding to reality.

“Evrika”, RIKA-TV, V. Gerber, M. Vorontsov (Aktobe City)

City court of Aktobe City (head R. Ahmadullin) rendered a decision to satisfy lawsuit of Aktyubisnk regional administration of committee of transport control on protection of honor, dignity and business reputation to the editorial office of the newspaper “Evrika”, television company RIKA-TV, journalists V. Gerber and M. Vorontsov. According to the court’s decision employees of KTK “suffered moral damage in form of discomfort, anxiety, anger, damage, humiliation in front of the public ” after reading in these publications in the newspaper “Evrika” “Welcome, give us the money” and “He made people respect him and could not do better” the following expressions: “… may be he could afford to compensate inflicted damage at the expense of the dollars, which are collected by his subordinates on the border”, “according to the words of long-distance truck-drivers, they haven’t faced such chaos on the part of controlling agencies in any country” and etc.

“Evrika” (Aktobe City)

On September 22 the editorial office of the newspaper “Evrika” in accordance with the court’s decision offered its apologies to the administration of transport control in regard to publications “Welcome, give us the money” and “He made people respect him …”.

Upon violation of private non-property rights, such as, honor, dignity and business reputation, civil law responsibility with the force of the article 143 of the civil code 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 comes into force only with simultaneous presence of the following conditions:

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

Indeed, information may be false, but not discredit honor and dignity of another person, or discredit him in subjective perception, but not accuse him in violation of laws and moral principles of society. There might be different combinations. It is not coincidental that law obligates to research and note in decision, which information in particular was acknowledged to be false, what do they discredit a plaintiff in, and during definition of compensation amount of moral damage consider degree of his moral suffering, life importance of violated right, character and sphere of dissemination of false, discrediting information, degree of guilt of this or that party of dispute, financial state of a damager, and other circumstances, which need to be paid attention to. It is also necessary to consider that with the force of the article 141 of the civil code of the RK plaintiff must prove fact of violation of private non-property right.

“Vechernyaya gazeta“, Tatyana Konstantinova (Karaganda City)

In the issue of the weekly “Vechernyaya gazeta” of September 21 under column “Criminal chronicle” contained report about robbery in boutique “Mon Plizir” in TSUM (shopping mall) of Karaganda City. 5000 USD were stolen from safe, which was situated in the trade hall. Report about the robbery was received from the report of the press-center of the city administration of internal affairs in Karagandinski region. Moreover, journalists Tatyana Konstantinova appealed for information about course of investigation on this case to the head of Mihailovski district department of internal affairs of Karaganda City. After publication of this material, the owner of the boutique, who threatened the journalist with «lawsuit and high financial costs», assaulted journalist.

Due to the fact that the report of the press-center pf the city administration of internal affairs is an official report of the state agency, the newspaper with the force of the article 26 of law of the RK “On mass media” is relieved from responsibility, even if the information in the article turned out to be false.

However, it is necessary to note that relief of the newspaper from responsibility in such cases does not relieve the first source from responsibility, which distributed false information.