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DECISION of Almaty municipal court

May 24, 2002 Almaty

Municipal court of Almaty city consisting of the presiding judge Yesbergenov U. S., secretary Turgan N., with participation of representatives: from the plaintiff - Fomenko A.F.; from the defendants - Vlasenko S.Y., Zhovtis Y.A., having considered in the open court session the case on the lawsuit of Aliyev Rakhat Mukhtarovich against the representative office of “Internews Network Kazakhstan”, chief editor of the newsletter “Internews Kazakhstan” and author of the article “Khabarization of the entire country” - Dylevskaya Svetlana Yuriyevna on protection of honor and dignity,

DEFINED:

The plaintiff appealed to court with the lawsuit on protection of honor and dignity against the representative office of information agency “Internews Network”, chief editor of the newsletter “Internews Kazakhstan” and author of the article “Khabarization of the entire country” - Dylevskaya S. Y., motivating his demands that the electronic newsletter # 23 (117) 20/08- 02/09. 2001 under the title: “Khabarization of the entire country. Part 2” disseminated untrue data regarding him and discrediting his honor and dignity data of the following content:

“D. Nazarbayeva and her husband - first deputy head of the Committee of National Security of the Republic of Kazakhstan Rakhat Aliyev, own or control (directly or indirectly) several television and radio networks, informally unified into a media holding (television channels Khabar, KTK, NTK, “ORT-Kazakhstan”, radio station “Yevropa plus Kazakhstan”, “Hit FM Khabar”, “Russkoye radio”, “Radio Retro-Karavan; newspapers “Novoye pokoleniye”, “Karavan”, “Karavan” publishing house, information agency “Kazakhstan today”, advertising agency “TV-Media and etc.).

Telecommunication company KATELKO is in the same row, “Kazakhstan’s broadcasting corporation. In winter of 2000 by the decree of the government two organizations, who controlled television and radio transmitting means (transmitters, television towers, television centers and etc.), were reorganized and rights of property and use over the state package of stocks of the newly-fledged organization were handed over to “KVK - Kazakhstan’s Broadcasting Corporation”, founder of which is a group of legal and physical entities. Experts ask themselves a question: who would benefit from privatization of state property?”.

The given data disseminated by defendants is untrue, discredits honor and dignity of the plaintiff, in this connection the plaintiff asks to declare the given data invalid, to oblige the defendant to give refutation in the order and on grounds provided for by the law of the Republic of Kazakhstan “On mass media”.

During the court session representative of the plaintiff supported his demands.

Representatives of plaintiffs did not acknowledge the lawsuit and explained that data, stated in the publication “Khabarization of the entire country. Part 2”, and particularly, those fragments of the publication, which the plaintiff considers untrue, discrediting his honor and dignity, are not personal statements of the journalist or editor, but information, received from official reports and documents, in particular, these data were contained: in the report of the US State department on practices in the sphere of human rights for 1999, in the yearly report of non-governmental organization “Committee to protect journalists” of 19.05.2001 “On situation in the sphere of freedom of press in different countries of the world”, on the web-site: http://burana.ru/200l/_kaz/kaz_l l_21.html., in number of other publications on web-sites and in print mass media.

In this regard, according to representatives of defendants, the last should be released from responsibility according to the article 26 of the law of the Republic of Kazakhstan “On mass media”, according to which the chief editor (editor), аs well as journalist do not bear responsibility for dissemination of untrue data in mass media, in case these data were contained in official reports and documents and in case they are literal reproduction of official speeches of deputies of representative bodies, official individuals of state bodies, organizations and citizens.

At the same time, defendants presented the following arguments:

So, the report of the US State department on practices in the sphere of human rights for 1999 contains the following information: “According to trustworthy observers from independent press and law-enforcement organizations, government and its representatives continued to concentrate in their hands mass media. Son-in-law of the President Nazarbayev Rakhat Aliyev and his partners, according to reports, established control over the group of mass media “Karavan”, which includes the biggest non-governmental newspaper of the country “Karavan”, as well as television and radio channels KTK and publishing house “Franklin-press”. Aliyev was the head of the Committee of National Security in Almaty region. According to reports, owners of “Karavan” group changed several times, beginning from June 1998, when, according to trustworthy mass media and law-advocates, tax authorities forced owners of the independent group of mass media “Karavan” to sell it to business circles, closely related to the President. At the same time, Aliyev was the head of tax police. At the end of August it was reported that KTK purchase NTK channel and was planning to reorganize the two channels into one company.

The annual report of non-governmental organization “Committee to protect journalists” of March 19, 2001 “On situation in the sphere of freedom of press in different countries of the world” contained the following information: “Nazarbayev’s daughter Dariga and her husband, Rakhat Aliyev run private television networks NTK and KTK; private, but financed from state funds television companies “Khabar”, “Khabar 2” and “ORT-Kazakhstan”. This couple controls radio stations “Yevropa plus”, “Russkoye radio”, “Radio Hit-FM” and radio “Karavan”, along with newspapers “Karavan”, “Novoye pokoleniye” and the publishing house “Franklin-press”.

On the web-site: http://burana.ru/200l/_kaz/kaz_l l_21.html. the article “President of Kazakhstan dismissed Rakhat Aliyev”, contained the following data: “According to some experts, in particular, analyst Eldar Merlinka, Aliyev runs one of the inter-elite groups, which controls television channels television channels “Khabar”, “Kazakhstan 1”, “Independent television channel” (“NTK”), “Commercial television channel” (“KTK”), “ORT-Kazakhstan”, radio stations: “Yevropa Plus-Kazakhstan”, “Radio Hit-FM-Khabar”, -“Russkoye radio”, radio “Retro-Kazakhstan”, newspapers: “Novoye pokoleniye”, “Karavan”, information agency “Kazakhstan-Today”.

Representatives of defendants also suppose that the textual fragment, specified by the plaintiff, contains data, not discrediting honor, dignity and business reputation of the plaintiff, as the cited paragraphs in the statement of claim do not contain any words, concerning the plaintiff’s use of his official position in personal commercial interests, and specification of the plaintiff’s position does not discredit his honor and dignity and has nothing to do with ownership or control over mass media.

In part of words “Experts ask themselves a question: who would benefit from privatization of state property?”, representatives of defendants during the judicial session explained that the given statement does not relate to the personality of the plaintiff,, as it is contained not in the paragraph, which has name and surname of the plaintiff, but in the following paragraph, which is not connected with the previous paragraph by semantic context.

Moreover, in the submitted statement of claim the plaintiff deliberately distorted the publication fragment by excluding the first sentence in the paragraph, given in the statement of claim, which reads: “Mass media experts say that today all large mass media of Kazakhstan actually passed into the ownership of members of the family of the president of the country, or private individuals, close to presidential circles”. While presence of this phrase, according to representatives of defendants, also excludes responsibility of the author of the publication and editorial office, as it is evidence of presence of statements, coming from mass media experts, not the author of the publication or editorial office of the web-site “Internews Network Kazakhstan”.

Ownership by legal entities and realization of control over their activity does not contradict the operating legislation and therefore does not touch upon honor and dignity of the plaintiff.

Having considered materials of the case, having listened to arguments of the parties and experts, the court considers that the lawsuit is subject to satisfaction based on the following reasons.

The court defined that the defendants disseminated untrue discrediting honor and dignity of the plaintiff data, prompting to opinion on realization by the plaintiff of private entrepreneurial activity, simultaneously combining it with the position of the first deputy of the head of the Committee of National Security, which implies illegal behavior of the plaintiff, due to violation of requirements of the law “On state service”, according to which state officials are prohibited to engage in private entrepreneurial activity, as well as purchase as private property several television and radio networks by state employee - first deputy head of the Committee of National Security of the Republic of Kazakhstan R.M. Aliyev.

The following evidences support the court’s conclusion.

According to conclusion of the psychological philological examination of 21.03.2002 #2561, the presented for examination article on behalf of S. Y. Dylevskaya “Khabarization of the entire country”, gives negative description of personality and actions of Aliyev R.M.. Aliyev R. M. is presented as employee of state institution - first deputy of the head of the Committee of National Security of the Republic of Kazakhstan, who at the same time manages to be involved in private entrepreneurial activity - own several television and radio stations.

According to experts the used speech unit “informally” gives the text the following meaning: R. M. Aliyev, being at the time employee of the state institution - first deputy head of the Committee of National Security of the Republic of Kazakhstan, - informally, but not in accepted order, unofficially, but virtually owns and controls several mass media of Kazakhstan - meaning is involved in private entrepreneurial activity. Judgments expressed in the publication prompt to opinions, promoting negative evaluation of R.M. Aliyev, who according to the author’s opinion, being the state employee - first deputy head of the Committee of National Security of the Republic of Kazakhstan, nevertheless is involved in private entrepreneurial activity - has at his disposal several private television and radio networks. The main context of the article of S.Y. Dylevskaya “Khabarization of the entire country”, considering her personal negative emotional evaluation, informs and prompts to condemnation of the fact: - purchase as private property of several television and radio networks by the state employee - first deputy head of the Committee of National Security R.M. Aliyev.

Experts Bogodukhova Y.D., Slepakova E.V. confirmed in court the expert conclusion by explaining that the expert conclusion was rendered not on construction of separate phrases, nut on the basis of content of the entire text.

According to the paragraph 1 of the Decree of Plenum of the Supreme Court of the Republic of Kazakhstan of 18.12.1992 #6 “On use in judicial practice of legislation on protection of honor, dignity and business reputation of citizen and legal entities”,- discrediting are such untrue data, which belittle honor and dignity of a citizen in public opinion or opinion of separate individuals from the point of view of observance of laws, moral principles of society.

Thus, the court came to the conclusion, that the article of S.Y. Dylevskaya “Khabarization of the entire country”, placed on the web-site of “Internews Network Kazakhstan”, in part of content of the paragraphs, specified in the statement of claim, gives negative evaluation of personality of the plaintiff in public opinion, particularly - obliteration by him of requirements of the law, moral principles, meaning contains data discrediting honor and dignity of the plaintiff.

Arguments presented by the defendants to substantiate their objections, cannot be accepted by the court taken into consideration due to the following reasons.

So, the presented to the court report of the US State Department on practices in the sphere of human rights for 1999 is not an official report or official document. So, from the meaning of the article 18 of the law “On mass media” it follows that official reports may be issued exclusively by state bodies of the Republic of Kazakhstan. Moreover, the given information is presented not in the form of official document, but in the form of reprinting from webs-site, meaning from unknown source, or from source, which cannot be defined during the judicial session, which indicates its inadmissibility as evidence according to the paragraph 6 of the part 1 of the article 69 of the Civil Procedural Code of the Republic of Kazakhstan.

Due to analogous grounds the court cannot take into consideration the annual report of the non-governmental organization “Committee to protect journalists” of March 19, 2001 “On situation in the sphere of freedom of press in different countries of the world”.

So, according to the article 26 of the law of the Republic of Kazakhstan of 23.07.99 #451-1 “On mass media” cases of release of editorial office , as well as journalist from responsibility are set for dissemination of untrue data in mass media in case these data: 1).were contained in official reports and documents; 2) were received from advertising and informational agencies or press-services of state bodies; 3) are literal reproduction of official speeches of deputies of representative bodies, official individuals of state organizations and citizens; 4) were contained in author speeches aired without preliminary recording, or in texts, not subject to editing according to the present law; 5) were contained in mandatory official reports of state bodies.

The given article of the Law does not provide for release from responsibility of editorial office of mass medium and journalist in case if disseminated information was taken from other sources.

Moreover, information, specified in aforementioned documents, corresponds to data, disputed by the plaintiff neither by content nor by meaning. In addition it does not contain any data in part of promoting profitable privatization of state property in the form of unified by the decree of the government: telecommunication company “KATELKO” and “Kazakhstan’s broadcasting corporation, meaning data, most substantially infringing personal non-property rights of the plaintiff.

The defendants’ reference to receipt of information by the from proper sources, such as other publishing editions and web-site: http://burana.ru/200l/_kaz/kaz_ll_21.html, is also unfounded, as according to the article 26 of the law of the Republic of Kazakhstan “On mass media”, to which the defendants refer, does not provide for cases of release of editorial office and journalist from responsibility for dissemination of data, are untrue, in case these data were contained in other mass media.

The defendants could not present indisputable evidences to the court, verifying disputed by the plaintiff data.

According to the part 2 of the article 68 of the Civil Procedural Code of the Republic of Kazakhstan facts of the case, which according to the law should be verified by specific evidences, cannot be verified by any other evidences.

Other arguments of the defendants do not deserve attention as there are refuted by conclusions of experts and their testimonies.

According to parts 1, 2 of the article 143 of the Civil Code of the Republic of Kazakhstan, parts 1, 2 of the article 19 of the law of the Republic of Kazakhstan “On mass media” citizen or legal entity has a right to demand in court refutation of data, discrediting his honor, dignity or business reputation, in case person who disseminated these data proves that that they are true. In case data, discrediting honor, dignity and business reputation of a citizen or legal entity are disseminated in mass media, they should be refuted free of charge in the same mass media.

According to the articles 141-143 of the Civil Code of the Republic of Kazakhstan, honor and dignity of citizen are attributed to his personal non-property rights, in case of violation of which, an individual, whose rights were violated, has a right for compensation of moral damage based on rules, set by the Civil code including method provided for by the article 9 of the Civil Code of the Republic of Kazakhstan, meaning by way of reestablishment of position existing prior to violation of the right.

At the same time, according to the part 3 of the article 141 of the Civil Code of the Republic of Kazakhstan private non-property rights are subject to protection regardless of fault of person, who violated the right.

Based on the aforementioned, following the articles 217-221 of the Civil Procedural Code of the Republic of Kazakhstan, the court

RULED:

  1. To satisfy the lawsuit of Aliyev Rakhat Mukhtarovich against the representative office of information agency “Internews Network”, chief editor of the newsletter “Internews Kazakhstan” and author of the article “Khabarization of the entire country” - Dylevskaya Svetlana Yuriyevna;

  2. To acknowledge data to be false, disseminated by the representative office of information agency “Internews Network”, chief editor of the newsletter “Internews Kazakhstan” and author of the article “Khabarization of the entire country” - Dylevskaya Svetlana Yuriyevna on the web-site - “Electronic newsletter” #23 (117) 20/08- 02/09. 2001 under the title: “Khabarization of the entire country. Part 2” of the following content: “D. Nazarbayeva and her husband - first deputy head of the Committee of National Security of the Republic of Kazakhstan Rakhat Aliyev, own or control (directly or indirectly) several television and radio networks, informally unified into a media holding (television channels Khabar, KTK, NTK, “ORT-Kazakhstan”, radio station “Yevropa plus Kazakhstan”, “Hit FM Khabar”, “Russkoye radio”, “Radio Retro-Karavan; newspapers “Novoye pokoleniye”, “Karavan”, “Karavan” publishing house, information agency “Kazakhstan today”, advertising agency “TV-Media and etc.). Telecommunication company KATELKO is in the same row, “Kazakhstan’s broadcasting corporation. In winter of 2000 by the decree of the government two organizations, who controlled television and radio transmitting means (transmitters, television towers, television centers and etc.), were reorganized and rights of property and use over the state package of stocks of the newly-fledged organization were handed over to “KVK - Kazakhstan’s Broadcasting Corporation”, founder of which is a group of legal and physical entities. Experts ask themselves a question: who would benefit from privatization of state property?”.

  3. To oblige the representative office of information agency “Internews Network”, chief editor of the newsletter “Internews Kazakhstan” and author of the article “Khabarization of the entire country” Dylevskaya Svetlana Yuriyevna within one month from the day the decision of the court comes into force to publish refutation in two languages: in Russian and English languages in form of separate material on the web-site - “Electronic newsletter of Internews Kazakhstan” under the title “REFUTATION” of the following content:

“On the web-site - Electronic newsletter #23 (117) 20/08- 02/09. 2001 under the title “Khabarization of the entire country. Part 2” false data regarding Rakhat Aliyev was disseminated, in particular, it was stated that:

“D. Nazarbayeva and her husband - first deputy head of the Committee of National Security of the Republic of Kazakhstan Rakhat Aliyev, own or control (directly or indirectly) several television and radio networks, informally unified into a media holding (television channels Khabar, KTK, NTK, “ORT-Kazakhstan”, radio station “Yevropa plus Kazakhstan”, “Hit FM Khabar”, “Russkoye radio”, “Radio Retro-Karavan; newspapers “Novoye pokoleniye”, “Karavan”, “Karavan” publishing house, information agency “Kazakhstan today”, advertising agency “TV-Media and etc.). Telecommunication company KATELKO is in the same row, “Kazakhstan’s broadcasting corporation. In winter of 2000 by the decree of the government two organizations, who controlled television and radio transmitting means (transmitters, television towers, television centers and etc.), were reorganized and rights of property and use over the state package of stocks of the newly-fledged organization were handed over to “KVK - Kazakhstan’s Broadcasting Corporation”, founder of which is a group of legal and physical entities. Experts ask themselves a question: who would benefit from privatization of state property?”.

Herewith we confirm, that the aforementioned data does not conform to reality and were published based on unchecked by us facts in violation of the law “On mass media”, with use of information from improper sources”.

The decision may be appealed against in the Supreme Court of the Republic of Kazakhstan within 15 days through Almaty municipal court.

Judge: Yesbergenov U.S.

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