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September

Monitoring of violation of freedom of speech in Kazakhstan in August 2008 (Digest)

 

Tender of the month: National Association of TV Broadcasters of Kazakhstan has addressed to President and other state officials of the country with open letter. The contest for receipt of right on ground broadcasting in the Republic of Kazakhstan was carried out with serious violations of legislative norms and its results have to be revoked. TV Channels of decimeter diapason were exhibited in 18 towns of Kazakhstan. There were only three pretenders. There were PLC Zet-TV-in Kostanay, PLCTV Radio Company Tandem-in Aktau and PLC Era-in all towns.

   

Rules of organization of the contest for receipt of right on ground broadcasting in the Republic of Kazakhstan provide, that two competitors have to pretend to one TV Channel. The contest of 16 towns has to be recognized ungrounded, because there were by one pretender to TV Channels in these towns. Commission has voted of great voices, that 18 TV Channels for contest will be become property of PLCTV Company Era. (See Chapter I Actions of state officials, defined actual state of mass media)

 

Threats of the month: Journalist of the newspaper Aktobe Times Kundyz Kasenova has prepared material. This material was about beating of suspected person by employees of State Department of Internal Affairs. They have wanted that he confessed in commitment of crime, which he did not commit. Journalist has decided to ask for Head of Press Service of Aktobe region Almat Imangaliev. She has said that he began to threat to her bodily injury. These threats were connected with her publication. Editorial staff of the newspaper Aktobe Timeshas written and sent letter to Ministry of Internal Affairs of the Republic of Kazakhstan. They have demanded to explain actions of Head of Press Service of Aktobe region Almat Iimangaliev in relation to journalist. (See Chapter II Threats to journalists)

    

Agreement of the month: On August 07, 2008 legal proceeding by suit of the correspondent of Internet- video portal “Stan. TV” Dana Nukeyeva was finished by amicable agreement. Promoter of the singer Makpal Zhunusova Kaldybek Kurmanaliev has apologized in court room and paid 120 thousands tenge as damage.

 

On April 19, 2008 film crew of Internet video-portal “Stan.TV” correspondent Dana Nukeyeva, camera men Yerlan Kuanyshbayev and Almas Nurdos have come to Palace of the Republic for making of review of evening of singer Makpal Zhunusova.

 

Dana Nukeyeva has gone to promoter of singer Kaldybek Kurmanaliev. Kaldybek Kurmanaliev has behaved himself disreputably in spite of reply on question. Dana Nukeyeva has tried to explain to promoter, that she has been representative of Russian-speaking edition. Kurmanaliev did not want to listen any explanations, began to cry and use obscene words. D.Nukeyeva has tried to stop them; Kurmanaliev has pushed film crew outside. The incident was recorded to video camera. Dana Nukeyeva has addressed to court with suit. She has demanded to institute Kaldybek Kurmanaliev to criminal responsibility for insult. (See Chapter III Demands and suits of mass media and journalists about protection of honor and dignity)

 

Pressure of the month: In August editorial staff of the newspaper “Taszhargan” has received some suits about protection of honor and dignity and more pre-court pretensions. Yermurat Bapi thinks that it is connected with pressure upon editorial staff. They try to close editorial office for publication of critical articles for actual aspects. (See Chapter III Demands and suits to mass media and journalists)

 

Monitoring of Foundation “Adil soz” has registered 84 reports in August 2008. 12 of which define the actual state of Mass Media in light of the political atmosphere of the month; 54 of which provide information on direct violation of rights of mass media and journalists; 18- on conflicts and charges brought forward against mass media and journalists.

 

Detailed monitoring of violations of rights Internet-editions see on website www.adilsoz.kz .

 

I. Peculiarities of political, social, administrative and legal climate in the country, determining actual state of mass media

 

1.     Actions and statements of state officials, determined actual position of mass media  

 

Changes and project of changes of acting legislation defined legal position of mass media  

 

August, 30

 

All mass media

 

There was second session of working group of amendments to lawOn Mass Mediaof the Republic of Kazakhstan at the beginning of July in the Ministry of Culture and Information. The first one was in May.  It was lasted more than one hour. State organs did not provide its written proposals. Members of working group of civil sector have provided their proposals, word descriptions of some positions of the ministry about law reform in mass media as in May.

 

Comparative table with proposals of Ministry of Culture and Information of the Republic of Kazakhstan was sent by email only on July 18, 2008. Members of working group it means Foundation of Protection of Freedom of Speech “Adil soz”, Congress of Journalists and Union of Journalists of Kazakhstan have made one conclusion of ministry’s project, formulated and distributed their proposals for discussion. These documents were placed on the website of foundation “Adil soz”. Then, Executive Secretary of Ministry of Culture and Information of the Republic of Kazakhstan Zhanna Kurmangalieva has made telephone call to President of Foundation “Adil soz” Tamara Kaleyeva and asked for her to put this information off website, so comparative table of proposals has been preliminary and non-official. She has said that they will send official draft law of the ministry in next week.

  

Foundation of Protection of Freedom of Speech “Adil soz” liquidated files of the ministry from its website to avoid some conflicts and trust to promises. Ministry of Culture and Information of the Republic of Kazakhstan did not provide any legislative proposals for members of working group till the end of August.

  

August, 29

 

All mass media

 

On August 29, 2008 President of the Republic of Kazakhstan N.Nazarbayev has signed decree of adoption of State ProgrammeWay to Europefor 2009-2011. The main goal of programme is output of Kazakhstan to level of strategic partnership with countries-members of OSCE. This programme was directed to improvement of Kazakhstan institutional and legal base with usage of positive European experience. There will be improved law on mass media.     

 

4. Actions and statements in protection of civil and professional rights of journalists and mass media  

 

August, 29

 

Electronic mass media

 

The contest for receipt of right on ground broadcasting in the Republic of Kazakhstan was carried out with serious violations of legislative norms and its results have to be revoked. Executive Director of National Association of TV Broadcasters of Kazakhstan, Member of Commission of Organization of Contests for receipt of right on ground broadcasting in the Republic of Kazakhstan Sholpan Zhaksybayeva.

  

TV Channels of decimeter diapason were exhibited in 18 towns of Kazakhstan-Almaty, Astana, Taldy-Korgan, Kokshetau, Taraz, Shymkent, Kyzyl-Orda, Aktobe, Aktau, Atyrau, Uralsk, Kostany, Petropavlovsk, Pavlodar, Ust-Kamenogorsk, Semey, Caraganda, Zhezkazgan. There were only three pretenders. There were PLC Zet-TV-in Kostanay, PLCTV Radio Company Tandem-in Aktau and PLC Era-in all towns.

    

Rules of organization of the contest for receipt of right on ground broadcasting in the Republic of Kazakhstan provide, that two competitors have to pretend to one TV Channel. The contest of 16 towns has to be recognized ungrounded, because there were by one pretender to TV Channels in these towns. Commission has voted of great voices, that 18 TV Channels for contest will be become property of PLCTV Company Era.

    

Small, regional business has no any chances for receipt TV and radio frequencies in towns during some years. Frequencies are distributed and given with keeping of competition and clearness, but by decision of founders of grand of national networks. There are people who have their influence on government. This information is in Appeal of National Association of TV Broadcasters of Kazakhstan to President and other top state officials of the country.

 

There were publications before beginning of the contest in some mass media that Primer Minister Karim Masimov has become actual founder of TV Company “Era”.

 

 

II. Violation of rights of mass media and journalists

 

1. Threats in relation to journalists and authors of publications in mass media

 

August, 12

 

Kundyz Kasenova, “Aktobe Times” (Aktobe)

 

Journalist of the newspaper Aktobe Times Kundyz Kasenova has prepared material. This material was about beating of suspected person, citizen of Aktobe Askar Kurbanov by employees of State Department of Internal Affairs. They have wanted that he confessed in commitment of crime, which he did not commit. Journalist has decided to ask for Head of Press Service of Aktobe region Almat Iimangaliev. She has said that he began to threat to her bodily injury. These threats were connected with her publication. Editorial staff of the newspaper Aktobe Timeshas written and sent letter to Ministry of Internal Affairs of the Republic of Kazakhstan. They have demanded to explain actions of Head of Press Service of Aktobe region Almat Imangaliev in relation to journalist.

 

 There was official investigation by facts of threats in Department of Internal Affairs of Aktobe region. Representative Officer of Aktobe Branch of International Bureau of Human Rights and Keeping of Law Olga Petrova was informed.

 

August, 08

 

Lev Guzikov, Vladimir Istomin, “Ak zhayik” (Atyrau)

 

Correspondent of the newspaper “Ak zhayik” Lev Guzikov and photo correspondent Vladimir Istomin have taken participation in night raid of traffic police. Police officers have detained car on one of the crossroad of the town. There were sober man and woman, who have been near him. She has introduced herself as judge of city court. They could not speak to police officers, and then paid attention to press. There were direct threats in relation to press.

    

A friend has taken addressed to editorial office and asked for them not to publish information and photo of their detention on September 11, 2008. He was refused in his request.

 

August, 28

 

Marina Rybalko, “Kurs” (Kokshetau)

 

Employee of Press Service of Department of internal Affairs of Akmola region Bikamal Nurgalimova has sent material about exposure of Sergey Shreiner to editorial office of the newspaper “Kurs”. He has disoriented one of the owners of hotel of Kokshetau. Sergey Shreiner has given to her 700 000 thousands tenge. The suspected person has made a clean breast of commitment of this criminal; was placed on reception centre of Department of Internal Affairs of Aktobe region. The sum of money was withdrawn. Bikamal Nurgalimova has written in her article about investigation. This article was published on August 14, 2008.

 

A man has made telephone call to editor of the newspaper “Kurs” Marina Rybalko at the end of August. He has introduced himself as Sergey Shreiner, begun to threat to her for publication of the material of police officers.

 

Comment

Threatening to kill or to cause severe damage to health, as well as threatening a person with other severe violence, or with destruction of property by arson, explosion, or by another publicly dangerous method, if there are sufficient bases to fear the carrying out of that threat under Article 112 of Criminal Code of the Republic of Kazakhstan. There is real threat in given case.

 

 

2. Insult of journalists

 

August, 20

 

Marina Rybalko, “Kurs” (Kokshetau)

 

There was publication of material in the newspaper “Kurs” on August 07, 2008.  This material was devoted to death of famous writer, publicist and Nobel laureate Alexander Solzhenitsyn. A man has made telephone call to editor of the newspaper Marina Rybalko on next day. He did not introduce himself; spoke about Alexander Solzhenitsyn in critical form.

 

 

 Marina Rybalko has said that everyone has right for its own opinion. This man has begun to insult her, using vulgar words.  Editorial staff has faced to it not in first time, when there was publication about ambiguous people or events in the newspaper “Kurs”.  

 

Comment

An insult, that is the debasement of the honour and dignity of another person, expressed in an obscene form under Article 130 “Insult” of Criminal Code of the Republic Kazakhstan. Journalists have right for court protection from insult.

 

2.                 Infringement into legal professional activity of journalists

 

August, 11

 

Mahabbat Yesenbayeva, “Vzglyad” (Caraganda)

 

Correspondent of the weekly “Vzglyad” Mahabbat Yesenbayeva has come to regional akimat of Caraganda to make report about protest of pensioner Roza Petrus. Hot water was shut off in her flat.  Pensioner has come to akimat. There was tin bowl and bag for her back with wood in her hands. Mahabbat Yesenbayeva has begun to make photo of Roza Petrus. Security office of akimat has run to journalist and begun to push her. He has begun to threat to her using vulgar words. The task of the editorial staff was out of fulfilment.

  

Correspondents of other newspapers were deprived possibility to cover this action.

 

August, 20

 

Raul Uporov, “Uralskaya nedelya” (Uralsk)

 

Photo correspondent of the newspaper Uralskaya nedelya Raul Uporov has wanted to make photos of the delivery of defendant persons to court room in the court. Security guards have attacked Uporov. They did not hear his exceptions and references for his legal rights; twisted him his arms, taken photo camera and marched him to the study of chief of security guard office. He was threat to put him into ward; was free in 20 minutes. Raul Uporov has understood that he violated law under attempt of making of photo without permission of the judge.     

 

August, 14

 

Aynur Abdieva, “TVC” (Caraganda)

 

The reviewer of TV Company TVC Aynur Abdieva has carried out journalistic investigation, which was connected with non-ordinary case.  Basement rats snatched small children in one of the remote districts of Caraganda. Aynur Abdieva has come to akimat of Octyabr district of the town. Security officer has pushed her outside.   

 

Comment

In given cases actions to journalists infringed their legal professional activities are illegal. Rights and duties of journalist, concerning their professional activities are shown in articles 20 and 21 of Law of the Republic of Kazakhstan “On Mass Media”. Interference in legal professional activity of journalist: 1. The creation of impediments to the conduct of the legal professional activity of journalist, by way of coercing him to distribute, or to refuse to distribute information; 2.The same act committed by a person with use of his official position, as well as with violence or a threat to apply it.(Criminal Code of the Republic of Kazakhstan)Under article 352 of Administrative Code of the Republic of Kazakhstan the creation of impediments to the conduct of the legal professional activity of a journalist, by way coercing him to distribute, or to refuse to distribute information. The same act committed by a person with the use of his official position, as well as with violence or a threat (parts 1, 2 article 155 of Criminal Code of the Republic of Kazakhstan). The creation of impediments to the conduct of the legal professional activity of a journalist or by way of depriving him of the opportunity it is the formal element of a definition of a crime in accordance with article 352 of Administrative Code of the Republic of Kazakhstan.

 

Our monitoring did not register any case to court of criminal or administrative case of these violations; cases of initiative of the same cases on the side of Ministry of Culture and Information of the Republic of Kazakhstan. Journalists have no any protection in such cases.

 

4. Violation of rights of mass media and journalists for freedom of speech and creation

 

August, 20

 

Sergey Haritonenko, “Kurs” (Kokshetau)

 

Chairman of Akmola Branch of Public Association Union of Artists of Kazakhstan has addressed to Executive Secretary of the newspaper “Kurs” Sergey Haritonenko. He has asked for him to write article about that this association was evicted from the building in accordance with judgment. Akim of kokshetau Bahyt Saparov in his commentary has said that this building transferred to the possession of department of Committee of National Safety of Akmola region. The article “Artists are evicted from building” was planned for publication on August 28, 2008. Employee of DCNS Ratmir (he has called himself) has made telephone call to the editorial office and advised not to publish this material for two days before publication. However, the article was published.  

 

August, 14

 

“Ak Zhayik” (Atyrau)

 

Employee of Department of Financial Police of Atyrau region Bagytzhan has called to editorial office of the newspaper Ak Zhayik. He has referred to his staff, asked to publish press release about counteraction of financial police of Atyrau and group of businessmen. He was informed that correspondent of the newspaper Lev Guzikov has prepared material about situation for next issue. Bagytzhan was unsatisfied by this variant, he has demanded to connect him with staff and insisted on immediate publication. He has explained that week waiting could effect on this process negatively.   

 

August, 20

 

Tatyana Rybalko, Kurs (Kokshetau)

 

Director of Secondary School ¹ 12 Zhanat Hasenova pressured upon teacher of elementary classes Tatyana Rybalko. Tatyana Rybalko has been relative of the editor of the newspaper Kurs Marina Rybalko. It had happened after publication of some articles about situation in educational organizations. Director of Secondary School ¹ 12 Zhanat Hasenova has said to Tatyana Rybalko that she could work normal, if newspaper stopped publication of some articles about numerous violations in school.    

 

Comment

Any attempts to dictate journalists and Mass Media what to publish, the content and volume of the publications as well as demands to or not to publish particular materials should not be deemed lawful. Article 20 of the Constitution guarantees citizens freedom of speech and creation. It means journalist has a right to distribute his ideas, opinion, views and values freely.

 

 He is also free to choose themes, genres, and creative methods. Nobody is also entitled to prevent a journalist from publishing his materials (article 155 of the Criminal Code of the RK and article 352 of the Administrative Code of the RK) and vice-versa, to oblige editorial board or journalist to publish particular materials, unless this obligation is provided for by the legislative acts. (Article 18 of the lawOn Mass Media”)

 

12. Violations of labor rights of citizens in connection with publications in press

 

August, 13

 

“Vremya” (Almaty)

 

There was articleChildrens deathin the newspaper Vremya on April 30, 2008. Gynaecologist of high category Zauresh Kamzina has addressed to Ministry of Health Care Service of the Republic of Kazakhstan and General Prosecutor’s Office with statement about numerous facts of concealment of infantile death in maternity houses of Almaty. The control confirmed this information, but found new ones. Zauresh Kamzina was made left of her own accord from SCH ¹ 1 after publication.

     

Now, she is refused in providing of work in all maternity houses of Almaty referring to order ¹ 274 21.04. 2006. It was signed by Chief of Department of Health Care Service Zauresh Amanzholova. She has forbidden acceptance for employment of obstetricians-gynecologists without permission of state officials of SHCS.   

 

Comment

In given case dismissal of person, who informed definite information, is illegal. Dismissal of journalists and other employees can be by reasons or in order, established by articles 54-57 of Labor code of the Republic of Kazakhstan.There is must be reason of staff reduction it is established on base of old and new staff schedule. Employee has to be informed about next dismissal not more than for month and employer has to take measures to transfer of employee to other work. All sums have to be paid to employee during three days under dismissal.   

 

III. Conflicts, violations, incriminated to mass media

 

1. Charges of libel (Article 129 of Criminal Code of the Republic of Kazakhstan)

 

August, 27

 

Karatay Saulembekov, Taszhargan (Ulytau district, Caraganda region)

 

There was publication of the letter “Geit of district scale” of pensioner of Karatay Saulembekov in the newspaper Taszhargan on May 14, 2008. Chief of Ulytau district, Caraganda region Suleymen Dusabayev has abused his position. Suleymen Dusabayev has written suit to district court and demanded to recover 50000 tenge as damage from pensioner for libel. Karatay Saulembekov has spoken with correspondent of foundation Adil soz. He has said that were only facts in the letter, but there was no any libel.

    

August, 30

  

Nadezhda Plyaskina, “Vremya” (Almaty)

 

Editorial staff of the newspaper “Vremya” and correspondent Nadezhda Plyaskina has addressed to Almaty City Court with claim to sentence of Zhetysu District Court ¹ 2 of Almaty, passed by Judge Ahmetzhan Primkulov. Criminal case of charge of libel of the correspondent of the newspaper “Vremya” Nadezhda Plyaskina; teachers and parents of pupils of Almaty Linguistic Gymnasium ¹ 105 was finished. It was connected with absence from court of private plaintiff, director of school Mariyash Galyamova. Editorial staff has thought that court of first instance had possibility but it did not consider case by proper way, violated right of accused i.e. journalist for protection.  

 

The legal proceeding of Almaty City Court was put off by the same reason. It was connected with absence from court of private plaintiff, director of school Mariyash Galyamova.

  

Comment

In given case accusations of journalists in libel are illegal. Libel, that is the distribution of deliberately false information which is defaming to the honor and dignity or another person, or which undermines his reputation (Article 129 of Criminal Code of the Republic of Kazakhstan). This structure of a crime is characterized by presence of guilt only in the form of direct intention that is when the person knew about untruth distributed information and aspired to distribute such untruth information.

 

Person with unadvised form of the guilty is out of responsibility.

 

The cases about libel are cases of private charge (Article 33 of Criminal Procedural Code of the Republic of Kazakhstan). Such cases are opened by person, who writes suit to court. This suit is about institution of criminal responsibility. The cases of private charge are considered by court under Articles 389-395 of Criminal Procedural Code of the Republic of Kazakhstan.   

 

The case can be dismissed from absence from court of private plaintiff without valid reasons. The case can be considered by proper way and in his absence by appeal of accused person.     

 

2.  Charges of Infringement upon Privacy and Infringement upon Inviolability of Housing (Articles 142 and 145 of Criminal Code of the Republic of Kazakhstan)

 

August, 01

 

Dilyaram Arkin, “Vremya” (Almaty)

 

The legal proceeding by suit of Mukhtar Aliev to correspondent of the newspaper Vremya Dilyaram Arkin in order of private charge under Articles 145 p1 and 142 p 2 (Charges of Infringement upon Privacy and Infringement upon Inviolability of Housing) of Criminal Code of the Republic of Kazakhstan.  It was waived. The judge has returned suit for registration.

 

The charges stemmed from article “My son has wanted I went to Austria”. This article was published on February 19, 2008. This article was based on interview with M.Aliev. He has needed in treatment on abroad.  This information was disputed by plaintiff.

 

Comment

Illegal collection or distribution of information concerning the private life of a person, which constitutes his personal or family secret, without that person's consent, if these acts inflicted damage upon the rights and legitimate interests of a given victim under Article 142 p 1 of Criminal Code of the Republic of Kazakhstan.

 

Illegal entry into a house, against the will of a person residing in it under Article 145 of Criminal Code of the Republic of Kazakhstan.

 

In given case there is information about article in the newspaper, based on interview. It is always voluntary and has agreement of interviewed person for publication. It is impossible to agree with charge of the journalist by above mentioned articles of the Criminal Code of the Republic of Kazakhstan.

 

3.                       Demands on protection of honor, dignity and business reputation from publication of definite information

  

August, 14

 

“Svoboda slova” (Almaty)

 

There was publication of the articleExtreme protestin the newspaper Svoboda slova on July 17, 2008. Anatoly Ahmetov has cut his finger. He has made it as protest against ignorance of court employees, who did not fulfill judgment. Editorial staff has received the letter, which was signed by Chief of Administrator of Courts of Almaty B.Unerbayev. He ahs asked to publish refutation. There was attached text of the refutationclever man goes around mountain”. Editorial staff has refused from publication of the refutation. They have said that the man could not obtain judgment for a long time and that’s why he made act of the mutilation in public.   

 

August, 25

 

Dos Omar, “Zakon I Pravosudie” (Astana)

 

Almaty District Court of Astana has taken decision in May 2008. Correspondent of the newspaper “Zakon I Pravosudie” (it was closed in February) Dos Omar and founder of the newspaper and PLC “ZIP Zakon I Pravosudie” had to pay 3000000 millions tenge as damage to PLC “Brozers Company”. In July appeal instance has dismissed his suit. Journalist has brought his suit to Supervision Collegium of the Court of Astana.

    

The charges stemmed from articleDeceived partnersby Omar Dos. This article was about conscientiousness relation to equity holders of PLC Brozers Company. Journalist has told with correspondent of the foundation Adil soz that his article was based on court materials. There were additional materials, which confirmed correctness of his words.   

 

August, 13

 

Victor Miroshnichenko, “Vremya” (Petropavlovsk)

 

Chief of Tax Committee of region Kalil Abdullayev has addressed to proper correspondent of the newspaper “Vremya” Victor Miroshnichenko. He has asked to publish refutation of informationWho believe?”  There was information about difference of reports of Tax Committee and Statistic Department. Tax employees explained there was lost of taxes, low salary in proper sector of the economy; statistic service men said that there was normal situation with economy of the region and high salary of North Kazakhstan’s people. Chief of Tax Committee of region Kalil Abdullayev has said that this compare has been incorrect and explained there was guilt of custom’s service. It has decreased customs duties from low flow of import and export.

   

There was publication “Believe everyone” in next issue as a result of it. Press Secretary of Custom Control Alexander Semenchuk has addressed to proper correspondent of the newspaper “Vremya” Victor Miroshnichenko. He has said that customs office did not fulfill plan for three milliards tenge, which was approved by Ministry of Finance. As a result of it money were transferred to not regional, but republican budget. After that there was third publication under titleTax mist” in the newspaper “Vremya”.

 

August, 24

 

Gulmira Zhanalina, “Vzglyad” (Caraganda)

 

Correspondent of the weekly Vzglyad Gulmira Danenova has published material under title “Life or salary”. There was information about difficult conditions of the labor of workers of PLC “Agropromstroy”. People could not get salary for a long time sick-leave certificates were not paid. One of the workers has promised to commit suicide, if money will not be paid for him.

     

There was letter for editorial staff in a day after publication of the article. Representatives of PLC “Agropromstroy” have demanded that Gulmira Danenova paid one million tenge for untruth information in voluntary form.  Otherwise, staff of PLC “Agropromstroy” was going to bring suit to court.  

 

August, 07

 

Igor Meltser, Victor Burdin, “Vremya” (Almaty)

 

There was first legal proceeding by suit of SCPE “Town Perinatal Center of Almaty” to chief editor “Vremya” I.Meltser, correspondent V.Burdin of the newspaper “Vremya” about protection of business reputation of the centre with demand to publish refutation Zhetysu District Court ¹2 of Almaty.

 

The charges stemmed from articles “Baby death” (on April 30, 2008), “Department of subscriptions” (on June 21, 2008) by Victor Burdin, which were published in the newspaper. There was information about state of system of public health service of Almaty, methods of management of director of Department of Health Service Z.Amanzholova.

 

The plaintiff motivates his demand, that author of the article has used materials from anonymous source from doctors of perinatal center. The newspaper presented perinatal center (state department of public health service) as staff of anonymous informers, who do not their professional work and duty and raise stinks and conflicts. 

 

August, 08

 

Mass media of Almaty

 

There were publications about violations of law of investment company “Mangistau” in some Kazakhstan’s mass media.  The staff has carried out press conference in Almaty. They have said that company implemented its activity in accordance with legislation of the Republic of Kazakhstan. Chairman of Board of Directors of JSC IC Mangistau Serik Ualiev has said that publications were ordered. They discredited business reputation of the company and make under threat implementation of important projects for the country. These projects were initiated by state power of the Republic of Kazakhstan. Chairman of Board of Directors of JSC IC “Mangistau” Serik Ualiev has asked for mass media to be more impartial and based upon truth facts.

 

August, 30

 

“Taszhargan” (Almaty)

  

Editorial staff of the newspaper “Taszhargan” has received pre-court pretensions from deputy Romin Madinov, General Director of PLC “Firm Tigrohaud” A.Zhauzhureck and General Director of PLC “Equipment Giving Possibilities Company” D.Ermakov. One of the partners of this PLC S.Abdrahmanov has made telephone call to the editorial staff and said that he was going to bring suit on sum of one milliard tenge to Chief Editor of Russian version of the newspaper Almat Azadi. But, there was no any suit.

 

“Main reader” of the newspaper Yermurat Bapi has thought that these claims were connected with system pressure upon editorial staff. They have actually attempts to close edition, which published critical issues and global problems.

 

August, 30

 

Taszhargan (Almaty)

  

There was publication of the article “Incorrect behavior of the judge” in Russian version of weekly of Almat Azadi in the newspaper “Taszhargan” on March 27, 2008. This article was about activity of Chairman of North Kazakhstan regional court Beket Turgarayev. The article and conclusions were based on information, provided for editorial staff by businessman from Shymkent B.Kaipnazarov. This information characterized Beket Turgarayev negatively. Beket Turgarayev has addressed to court with suit. He has thought that there was untruth information, which discredited his honor and dignity. Interests of the plaintiff at the court were presented by lawyer V.Voronov. The parties have come to amicable agreement as a result of it editorial staff had to publish refutation.

After publication of the refutation lawyer V.Voronov has addressed to Medeu Court of Almaty with suit of text of the refutation and comment of the editorial office.

 

The judge Medeu Court of Almaty M.Maksudov has given decision about repeated refutation, but without commentary of the editorial staff, referring to p.9 of Normative Decision of Supreme Court of the Republic of Kazakhstan.

 

The refutation was published.

 

 

August, 30

 

Taszhargan (Almaty)

  

There is suit of public activist Hasen Khozha-Ahmet in Medeu District Court of Almaty.  He has thought that there was negative information about activity of former Civil Movement “Azat” in the newspaper “Taszhargan”. This suit was brought only in six months after publication.  

 

August, 20

 

Taszhargan (Almaty)

 

The staff of Department of Internal Affairs of Almaty region has addressed to the editorial staff of the newspaper “Taszhargan” with demand to publish refutation for article “Mentality of police officers”, which was published on August 13, 2007 and written by officers of DIA of Almaty region. Police officers thought that arguments have been invented and untrue.

 

Police officers have demanded to publish refutation on the same page and format. It was done on the grounds of report of apparatus session. This article discredited reputation of personnel of Department of Internal Affairs of Almaty region. Personnel of Department of Internal Affairs of Almaty region has said that they were going to address to court with suit about protection of honor and dignity.

 

August, 01

 

Petropavlovsk.KZ” (Petropavlovsk)

 

The law “On amendments into some legislative acts of the Republic of Kazakhstan of safeguarding of security of street traffic” has come to law-enforcement. There were photos of cars of top officials, which were overtaken during violation of road rules in the newspaper “Petropavlovsk.KZ”. There was also photo of service car of Chief of Department of Justice, whose driver did not fasten safety belt. The refutation was published in next issue of the newspaper. The car has been at parking area, but this photo was done during movement.

 

Correspondent of the foundation “Adil soz” has applied to the staff of the newspaper to give information about situation. Editorial staff has refused to give explanations about it.

 

 

August, 25

 

“Financial Co”

 

Ministry of Defense of the Republic of Kazakhstan has made telephone call to editorial office of “Financial Co”. This edition was printed in Georgia. It has made reference to American Press Agency “The Financial Time” and informed that that Russian, Ossetic and Kazakh soldiers killed peaceful inhabitants. There was record that not Kazakh people, but Cossacks in English-speaking version (Russian Cossaks and Ossetian military). It was known about it some times late. Press Secretary of Ministry of Defense of the republic of Kazakhstan Serik Shalov has said that mistake was made by guilt of duty editor of the edition.

 

Kazakhstan representatives have demanded that information about that there were Kazakh people in complement of military persons has been mistaken and placed on the website “Financial Co”.

 

Comment

Our monitoring registers cases, when judicial persons apply with demands on protection of business reputation under absence of discredited points in publications. It is illegal. Civil legal responsibility infringement on non-property rights like honor, dignity and business reputation, by virtue of the Article 143 of the Civil Code of the RK and Normative Decrees of the Supreme Court of the RK of 18.12.92 #6 (with further changes), comes only upon presence of simultaneously the following conditions:

 

in case publication contains data in particular, not opinions, beliefs or evaluatory judgments;

in case these data are false, meaning do not correspond to reality;

in case they discredit honor, dignity or business reputation of the plaintiff from the point of view of observance of laws and moral principles of the society.

 In case at least one of these conditions is missed, civil legal responsibility does not come.

On one hand, distributor of the data, i.e. Mass Media is burdened to prove that published data is true. On the other hand, plaintiff is to prove the fact that his non-property rights were damaged, by virtue of Article 141 of the Civil Code of the Republic of Kazakhstan. In particular, his non-property rights, but not company’s rights or rights of nation, people, relatives and employees, which were the plaintiff’s main concern. The Normative Court Decree (of 18.12.1992) demands that the person must be recognizable in the article. Moreover, in accordance with item 17 of the Supreme Court Decree “On court application of legislation to compensate moral damage” of 21.06.2001 #3, currently a plaintiff is obliged not only to file a claim, but also to “provide documents proving infringements on his personal non-property rights and assets. The decree also mentions that court decisions on compensation size must be followed from principles of fairness and sufficiency. In addition, we must keep in mind that compensation for moral damages in favor of legal persons has some peculiarities. Legal person is an inanimate person, and therefore cannot suffer moral and physical damages. Thus infringements on personal non-property rights of legal person rather mean belittling and deprivation of them. But these things are quite material and consequently a plaintiff must provide correspondent documents in order to prove these infringements.

 

4.   Demands about protection of honor, dignity and business reputation from publications of official reports and decisions

  

August, 12

 

Nazgul Suleymenova, “Dobryi vecher” (Petropavlovsk)

 

Businessman has addressed to the editorial office of the newspaper Dobryi vecher. He has demanded to publish refutation of the articleDebtor-millionaire” on November 09, 2007. One M was punished by restriction of freedom for a period up to five years for fraud. It was told about it in the article of Nazgul Suleymenova. Hero of the publication has brought petition for appeal for judgment and case was directed to additional investigation.

       

Nazgul Suleymenova has refused to publish refutation, because information was written on base of press release of Department of Struggle for Economical and Corruption Crimes and name of hero of the publication was not mentioned total. He has brought suit about protection of honour, dignity and business reputation to court. He has asked to recover 10 millions tenge as damage from Department of Struggle for Economical and Corruption Crimes and founder of the newspaper and editorial office “Severnyi Kazakhstan; publish refutation on pages of the newspaper. His suit was dismissed.    

 

Comments

In given case court has dismissed suit of the plaintiff by proper way.

 

Guilt or innocence on criminal case is not established bypassing the criminal-procedural legislation in civil order. Under Article 242 p.4 given suit in any case was subject to dismiss before final consideration of criminal case.

 

Demands of the plaintiff are not based on law:

 

à) The person innocent to the coming into law-enforcement of sentence of the court under Article 77 p.1 p.3 of the Constitution of the Republic of Kazakhstan. However, this norm is among principles by which the judge and only the judge should be guided by consideration of corresponding criminal case;

 

b) Letter of accusation at finishing of the criminal case is made only in assertive form under criminal-procedural legislation. The court sentence ascertains guilt or innocence of the person irrespective of, with what result criminal case in the subsequent instances will be considered. That it has been made both body of criminal prosecution, and court of the first instance;

  

c) Basic principle of legal proceedings is publicity and an openness of litigations. It is necessary to recognise that for the first time it has published and spread information on guilt of claimant court of the first instance within the competence; as it has come to this belief under Article 29 of Criminal Procedural Code of the Republic Kazakhstan. The bill of particulars has been announced in public;

 

d) Mass media had right to publish all disputes of the court process, including points of letter of accusation and sentence.  

 

Points of damages will be considered by court, passed sentence in order of Articles 39-47of Criminal Procedural Code of the Republic of Kazakhstan under justification or full exoneration of the plaintiff.   

 

5.  Demands and suits about protection of honor, dignity and business reputation from publication of opinions, ideas and value judgments

   

August, 13

 

“Ak Zhayik” (Atyrau)

 

There was letter of PLC “Bolashak Atyrau” for editorial staff of the newspaper “Ak Zhayik”. This document was signed by director of PLC Bolashak Atyrau E.Makinnon. He has asked to publish apologize, concerning inopportune liquidation of negative commentary for article “There are specialists from Trinidad, but we do not need local ones” in Internet-version of the newspaper.   There was information about that distribution of negative opinion of “Bolashak Atyrau”, discredited business reputation, honor and dignity of employees.   

 

Legal advice was given to the editorial staff of the newspaper Ak Zhayik by lawyer of the foundation Adil soz Ganna Krasilnikova. They have refused to publish apologize in Internet-version of the newspaper.

   

August, 29

 

“Vzglyad” (Caraganda)

 

Inter District Economic Court of Caraganda considers again suit between director of trade and entertainment complex “City Mol” O.Sundukovskiy and editorial office of Caraganda weekly “Vzglyad”.

 

There was article in the weekly “Vzglyad” on March 26, 2008. The building of trade and entertainment complex “City Mol” was compared with chest. They have meant architectural features of the building. O.Sundukovskiy has brought suit about protection of his honor, dignity and business reputation. He has demanded to pay 10 millions tenge as damage. Judge Makasheva has rendered judgment by default and obliged editorial staff to pay one million tenge for plaintiff. It was dismissed.

 

Editorial staff has addressed to court with counter-claim during legal proceeding. First, journalists ask to pay damage for them from situation with trade and entertainment complex “City Mol”. There is compensation as 7 (seven) tenge. Second, they want to oblige O.Sundukovskiy run around building of trade and entertainment complex “City Mol” with dropped trousers in full moon.     

 

Comment

Public expression of one's views, beliefs, opinions and appraisals by virtue of the article 20 of the Constitution of the Republic of Kazakhstan, article 2 of the law of the Republic of Kazakhstan "On mass media" and 143 of the Civil Code of the Republic of Kazakhstan, as opposed to distribution of false discrediting data, does not entail civil legal responsibility. Main distinction of data (facts) from opinions and appraisals is that authenticity of data can be checked unlike opinions and appraisals.

 

6. Demands and suits of mass media and journalists in protection of their civil and professional rights

 

6.1. Demands about protection of honor, dignity and business reputation

 

August, 07

 

Dana Nukeyeva, “Stan.TV” (Almaty) 

On August 07, 2008 legal proceeding by suit of the correspondent of Internet- video portal “Stan. TV” Dana Nukeyeva was finished by amicable agreement. Promoter of the singer Makpal Zhunusova Kaldybek Kurmanaliev has apologized in court room and paid 120 thousands tenge as damage.

 

On April 19, 2008 film crew of Internet video-portal “Stan.TV” correspondent Dana Nukeyeva, camera men Yerlan Kuanyshbayev and Almas Nurdos have come to Palace of the Republic for making of review of evening of singer Makpal Zhunusova.

 

Dana Nukeyeva has gone to promoter of singer Kaldybek Kurmanaliev. Kaldybek Kurmanaliev has behaved himself disreputably in spite of reply on question. Dana Nukeyeva has tried to explain to promoter, that she has been representative of Russian-speaking edition. Kurmanaliev did not want to listen any explanations, began to cry and use obscene words. D.Nukeyeva has tried to stop them; Kurmanaliev has pushed film crew outside. The incident was recorded to video camera. Dana Nukeyeva has addressed to court with suit. She has demanded to institute Kaldybek Kurmanaliev to criminal responsibility for insult.

 

Comment

In given case charge of journalist is illegal. They form corpus delicti under Article 130 “Insult” of Criminal Code of the Republic Kazakhstan. An insult contained in a public speech, or in a publicly demonstrated work, or in the mass information media. Journalist has won court process, so charged person had to recover damage voluntary.

 

Monitoring was prepared based on reports of mass media and correspondents of the Foundation "Adil Soz".

 

Comments were prepared by the legal service of "Adil Soz".

 

Head of the legal service of the Foundation "Adil Soz"

Kalsin Eleodor Fedorovich

kalsin@adilsoz.kz

 

Head of the monitoring service of the Foundation "Adil Soz"

Stebluk Natalia Fedorovna

steblyuk@adilsoz.kz

 

 
 © 2005 Adilsoz.kz.