Monitoring of Violations of Freedom of Speech in Kazakhstan in March, 2006
As before the most sensitive topic in March were the results of the criminal investigation into the murder of Altynbek Sarsenbayev. There were both unsanctioned and sanctioned demonstrations in Kazakhstan, demanding that the authorities hold a transparent investigation and bring the criminals to justice. The protesters faced administrative charges. Editor of Svoboda Slova newspaper, Gulzhan Yergaliyeva was held in prison for 5 days. The deputy Foreign Minister, Rakhat Alieyev, filed defamation charges against former National Security Service colonel, Arag Nurmagambetov, following publication of his interview in Aina plus newspaper, suggesting Aliyev had been involved in the murder.
In March, another opposition newspaper was closed. Specialized inter-district court cancelled registration of Juma Times newspaper and stopped its publication, following the lawsuit from Almaty City Prosecutor. Furthermore it closed company Jumash Kokbori, which owned the paper. The lawsuit was based on a number of publications, which were considered to be insulting the honor and dignity of President Nursultan Nazarbayev during the election campaign of 2005.
In March a lot of multimillion lawsuits were filed against newspapers.
On 10th March, Medeu District Court in Almaty ordered to Duniye company to pay 50 thousand tenge, Bulat Abilov – 1 million tenge in damages to a Canadian, Adonis Derbas. Vremya newspaper and journalist Gennday Benditskiy were obliged to pay 500 thousand tenge each to Derbas.
Yerasyl Abylkasymov, a member of the Parliament, filed a lawsuit, based on “protection of the honor and dignity,” against Alem BG company, founder of Central Asia Monitor newspaper, its chief editor Bigeldy Gabdullin and journalist Sayat Musin. The lawsuit was based on his interview to Sayat Musin, published in different newspapers. The total amount sought in damages was 50 million tenge.
Nurgozhi Chinyayev, head of the West-Kazakhstani regional court, filed charges against Uralskaya nedelya and reporter Lukpan Akhmedyarov. The lawsuit based on protection of the professional dignity of the judiciary followed publication of the survey results entitled “Don’t teach judges how to live, better help them financially.” The Anti-Corruption Department dismissed the lawsuit, aiming to launch criminal investigation into the case.
In March, there were a lot of violations of journalists’ labor rights. In Ust-Kamenogorsk 6 employees were fired at Kazakhstan TV/radio Channel, 11 received warnings of the coming dismissal in Sandyktauskiye vesti newspaper. 31 Channel-Atyrau journalists were forced to work extra hours, saying otherwise they risk their job. Yelena Shigantsova, fired from Softland TV had to file a claim, in order to get her salary paid (Rudnyi, Kostanai region).
Statistical indicators of the month are similar to what they were earlier – two thirds of them report on journalists, denied information.
For the first time, our monitoring has registered a prosecutor bringing members of the state teachers’ university administration to court for ‘concealing information from Emergency Service and media outlets,” in Pavlodar.
In March, International Foundation for Protection of Speech documented 95 instances, where journalists’ rights were infringed. Of these 19 define actual state of Mass Media in light of the political atmosphere of the month, 60 - provide information on direct violations of rights of Mass Media outlets and journalists, 16 - on conflicts and charges brought forward against Mass Media outlets and journalists, including:
I. PECULIARITIES OF POLITICAL, SOCIAL, ADMINISTRATIVE AND LEGAL CLIMATE IN THE COUNTRY, DEFINING THE ACTUAL STATE OF MASS MEDIA
1. Public speeches, statements and actions of higher officials, defining factual state of mass media
On 24th March, President of Kazakhstan Nursultan Nazarbayev, said at the first session of the Democratic Reforms Development State Commission: “Developing and empowering media outlets is to be the key direction in order to guarantee freedom of expression in our country and ensure an independent control over the state bodies. So we have to raise professionalism and independence and professional ethics of journalists. Free media guarantees should set their moral responsibilities to society, and law observance.
Majority of members of Majilis (Parliament) at its plenary session, voted against an idea, proposed by Amalbek Tshan, to have a closed session to discuss the murder case of Altynbek Sarsenbayev. Thirty five of 63 members voted against the idea.
2. Actions of journalists and media outlets to defend their civil and professional rights
Journalists and editors for the republican media outlets, heads of human rights organizations sent an open letter to the Democratic Reforms Development State Commission, doubting government’s good faith in its commitment to carry out democratic reforms. The letter followed actual accreditation refusal to a number of independent newspapers and a statement by Yertysbayev, saying the Ministry plans to revise media registration mechanism, as it is “too simple.”
In their letter, they said:
“It happens, despite the fact that the Ministry today violates the operating legislation, as it refuses registration to new media outlets, which are not pro-presidential, are not invited to attend close and open sessions, do work in accordance with the media plans, developed by the Ministry!
Obviously, “reforms” of such kind can be viewed as an attempt by the authorities to prevent media outlets from registering by law. A new wave of multimillion lawsuits against media owners, staff and editors, which had begun soon after the Presidential election, caused the next pre-planned campaign to oppress the independent press in Kazakhstan. What is happening today has undermined creditability of the state political reforms programme with the Kazakh and international community.”
On 18th March, members of the opposition parties staged a demonstration to express their ‘no confidence’ to findings of the official investigation into the murder of opposition politicians Nurkadilov and Sarsenbayev.
Protesters demanded that the authorities resume investigation into the murder cases. They also demanded that the Interior Department changed the qualification of charges to article 233 of the Criminal Code of the Republic of Kazakhstan (terrorism).
The members of opposition parties reported Utembayev, charged with killing Sarsenbayev, had denied the charges. The protesters called on the authorities to bring the case to jury. They proposed to bring changes to the law, in order to ensure the jury can hear the case in May this year, instead of January, 2007.
Furthermore, the protesters proposed to name streets and avenues after recently killed opposition leaders and activists.
On 29th March, the Independent Public Commission, which was to find out circumstances of the murder of Altynbek Sarsenbayev, held its session in Almaty. The Commission adopted a special order, mentioning the police investigation unit violated the law “on full and objective investigation into all circumstances of the murder.” The Commission spokesman said the unit tries only to “procedurally document the version of the murder, proposed by the Minister of Internal Affairs.”
The police ignore the Commission, which requested to question all political opponents of Sarsenbayev, and possibility that some state officials were involved in the murder. The public statement by Dariga Nazarbayeva, saying Nurtai Dautbayev “proposed his own version of the murder: the case was backed by the presidential family members – either Rakhat Aliyev or Timur Kulibayev, or Kairat Satypaldy.”
On March 11, members of the Public Youth Professionals’ Community, Zhuravlyov and Baibosyn were detained in the central part of Almaty, Arbat, wearing shirts with Sarsenbayev picture. Police officers took them to Zhetysu district police station, saying they needed to identify them, despite the fact that the detainees had shown them their IDs.
They were held there for two hours, facing threats and attempts to put off their clothing. The young men called a lawyer, Daniyar Kanafin. As a consequence they were released, though followed by the police officers all their way to Arbat. The young men had to return back to Arabat to continue their flash mob
Svoboda slova (Almaty)
Svoboda slova’s staff vowed a 5 minute action to protest the court order, sentencing newspaper’s chief, Gulzhan Yergaliyeva editor to 5 days in prison. She was charged with organizing an unsanctioned demonstration. The journalists were standing in silence outside Presidential residence for five days. Yergaliyeva, charges under the Administrative Code, along with other opposition leaders, has begun a hunger strike, protesting at her arrest.
II. VIOLATIONS OF JOURNALISTS’ AND MEDIA OUTLETS’ RIGHTS
1. Journalists prevented from carrying out their professional activities
Aziz Murzabayev, Nikolai Leontyev, Otyrar (Shymkent)
Otyrar camera crew, made up of Aziz Murzabayev and Nikolai Leontyev, were covering a car accident, when drivers of the three cars and passengers began threatening to beat them and break their equipment. The journalists had to leave the site.
Actions, aimed at preventing journalists from carrying out their professional activities are unlawful.
Article 20 of the law of the Republic of Kazakhstan “On Mass Media” sets rights and responsibilities of journalists, carrying out their professional activities. Any attempts to prevent journalist from doing his job by means of constraining him to distribute or refuse to distribute information constitutes corpus delicti, provided by part 1 of the article 155 of the Criminal Code of the Republic of Kazakhstan. The same actions, carried out by an individual with use of his official position, which is equal to use of force or threat of its use, constitute corpus delicti, provided for by part 2 of the mentioned article of the Criminal Code of the Republic of Kazakhstan.
Conditions, that were deliberately created to deprive the journalist of his legal rights and obligations, constitute corpus delicti, provided for by the article 352 of the Code of Administrative Offence of the Republic of Kazakhstan
2. Journalists’ labor rights infringed
TV/Radio Channel, Kazakhstan (Ust-Kamenogorsk)
On March 9, Vremya newspaper reported 14 staffers for Kazakhstan TV/Radio Company had been dismissed. In her report, Natalya Shimolina, said: “the staffers were dismissed, after having sent a complaint to a member of the Kazakhstan’s board of directors, Galym Dosken,” accusing their director Dauren Djusebayev of being unprofessional. All of them believe that TV channels’ rating fell because of Djusebayev, who had previously been working for the city and regional akimats.
Dauren Djusebayev said to our reporter in Ust-Kamenogorsk, in a phone conversation, not all of those staffers fired, had actually lot their jobs. Five editors were moved to other departments, a sound engineer left the city for Astana, and two other staffers resigned. And only 6 staffers, who signed the complaint, were fired, because of bad atmosphere, they had created, sending letters, with unverified facts.
“The bad atmosphere,” what were legal qualifications and professional justifications remain unclear
31 Channel-Atyrau (Atyrau)
31 channel journalists had to work extra hours, to edit and sound paid commercials, after head of the channel, Tokmashov, said any of the journalists will be fired, for having refused to do this. “If you don’t like something, resign.”
Anna Kozlova, Sandyktauskiye vesti (Balkashino village, Akmolinsk region)
Sandyktauskiye vesti newspaper employees were notified of the coming cuts in staff. Newspaper editor Anna Kozlova said the decision was related to the order issued by akimat on 8th February, 2006. The staff referred to article 24 of the Labor law, having refused to sign the notification received.
Yelena Kalinina, Samat Nurekeshov, Voktor Turnayev, 31 channel-Aktau (Aktau)
In May, 2005, 31 channel-Aktau’s camera crew has made a film “Business class at school” for the public foundation “Youth achievement.” Film creators were – editor and host Yelena Kalinina, camera men Samat Nurekeshov and Voktor Turnayev, were not paid their honoraria, though the first installment was transferred in summer, 2005.
In the given cases, employers’ actions are illegal.
The employer is obliged to pay salary under article 12 of the Labor Law, since employee begins to work, even though labor contract is not concluded. Salary should be paid not less than once a month, on the day set by the individual or collective labor contract. Pension fund transfers are to be made the same day. In case of delays, the employer should be fined. Staff journalists are paid honoraria on the day of paying salary, freelance journalists receive their honoraria within time limits set in the contract.
Employee can be fired in cases set by article 26 of the Labor law. Employees can be fired also as a results of cuts in staff, after having received compensation. Employee can be fired during his temporary disability if only the organization he/she works for has been closed. All orders, somehow related to the employee should be signed.
III. CONFLICTS. VIOLATIONS, INCRIMINATED TO MASS MEDIA
1. Defamation charges (article 129 of the Criminal Code of the Republic of Kazakhstan)
Arag Narmagambetov, Aina-plus (Almaty)
First deputy Minister of Foreign Affairs in Kazakhstan, Rakhat Aliyev, filed a claim against former NSC (National Security Committee) officer, Arag Narmagambetov. The claim was based on two interviews published in the newspaper Aina-plus, in which the colonel said he believed Rakhat Aliyev to have been involved in the murder of Sarsenbayev, Zhuravlyov and Baibosyn and the investigation to be biased. Narmagambetov said he must “share information he had, because it is truth”, as he could be probably charged for failing to provide information about the crime committed to the state bodies – murder of the popular politician in Kazakhstan.”
Aliyev said criminal investigation into the case is the necessity under the article 129 of the Criminal Code (defamation, combined with charges against a person of committing the grievous crime).
Narmagambetov said in his interview to Aina-plus newspaper, he did not attempt to defame anyone and had the evidence to prove Aliyev guilty. So he is going to do everything possible to bring the case to court and witness.
The court hearing was scheduled for May.
According to the article 129 of the Criminal code of the Republic of Kazakhstan defamation is distribution of deliberately false information, discrediting another person. Meaning that the given corpus delicti is characterized by presence of direct intention only, when a person knew in advance about falsity of information distributed and wittingly strived to defame. The article sets punishment including fines, corrective of rehabilitation labor, arrest or imprisonment, that depends on the provisions under which the actions were qualified.
In all of the aforementioned cases cognizance is absent, as publications of journalists were based on reports and documents, provided to them by other individuals. Information and opinions should also be distinguished.
2. Journalists facing charges of defaming the judges
Uralskaya nedelya (Uralsk)
West Kazakhstani Anti-Corruption Department held an inspection of Uralskaya nedelya newspaper. The inspection followed a claim filed by Nurgozhi Chinyayev, chairman of the Regional Court in the Uralsk procuracy, demanding that it bring charges against the paper and its journalist, Lukpan Akhmedyarov, under the Criminal Code. The claim was based on a survey of the city residents, entitled “Do not teach judges how to live, better help them financially,” published in the paper. According to the survey data, 49% of the residents believe to win the case they need to bribe a judge.
The department issued an order, dismissing the claim for no legal ground to initiate proceedings against the paper and journalist.
In the earlier monitoring report, we expressed our point of view, saying the journalists in the given case had done nothing against the law. It is good to see the Anti-Corruption Department was just and fair, having dismissed the request for criminal investigation.
In truly democratic states, a state official, who had accused a media outlet of committing an offence, but failed to prove it, has to resign.
3. Charges of grievous violating the operating legislation provisions (article 49 of the Civil Code of the Republic of Kazakhstan)
Juma Times (Almaty)
On 6th March, the Specialized Economic Inter-district Court of Almaty delivered a ruling, ordering the closure Zhumash-Kokberi company, owning Juma Times newspaper, and subsequently cancellation of newspaper registration, following a prosecutor’s lawsuit.
The lawsuit was based on a number of publications in the paper, which were found by the court insulting the honor and dignity of President Nazarbayev, candidate running for reelection in the fall, 2005.
Juma Times is a radical opposition newspaper with circulation of 100,000 copies, in publication since 2004. It has declared itself the successor to SolDat, an opposition paper shut down in 2003. SolDat newspaper was itself the successor to Dat newspaper, which went bankrupt in 1998 after being sued for libel.
We have repeatedly expressed our opinion – article 49 of the Civil Code comprise of administrative norms in terms of the disposition and sanction; they cannot be applied after the new Administrative Code had been adopted. Though the norms are being applied still, especially in politicized processes. They have substituted all others, because of too vague meaning.
4. Charges of violating the procedure for holding meetings and marches (article 373 of the Administrative Code of the Republic of Kazakhstan)
Gulzhan Yergaliyeva, Svoboda Slova (Almaty)
On 2 March 2006, Gulzhan Yergaliyeva, editor-in-chief of Svoboda Slova newspaper, was sentenced to five days of "administrative detention" for holding an unsanctioned demonstration on 26 February. Yergaliyeva has started a hunger strike to protest the ruling.
On 1 March, Yergaliyeva was fined approximately US$316. However, the prosecutor asked the court to review the case, saying the original penalty was "inexcusably light." Some other demonstrators were sentenced to five to 15 days' imprisonment or fined on similar charges.
The demonstration, aimed at paying final respect to "victims of political repression", followed the killing of Altynbek Sarsenbayev, former Information Minister and leader of the opposition party Ak Zhol. Yergaliyeva believes that her sentence is intended to stop her from doing her job, making the publication of her newspaper's next edition impossible.
Svoboda Slova is a radical opposition newspaper with circulation of 100,000 copies, in publication since 2004. During the Presidential campaign of 2005, the paper was hit with three court rulings that called for the seizure of all copies of the newspaper on charges of insulting President Nazarbayev, then running for reelection. Subsequently, Yergaliyeva was charged a fine of approximately US$400.
Article 32 of the Constitution guarantees the right for all citizens to gather and hold meetings, demonstrations and marches in a peaceful way. The right is limited only by the law, in order to ensure state security, rights and freedoms of other people.
However, according to the operating legislation, any public action, including meetings, can be help since formally permitted. Article 373 of the Administrative Code sets responsibility for related violations.
5. Claims of protecting the honor, dignity and business reputation, following publication of the specific data
Bigeldy Gabdullin, Sayat Musin, Central Asia Monitor (Almaty)
Yerasyl Abylkasymov, a member of the Parliament, filed a lawsuit against Alem BG company, which founded and publishes the newspaper Central Asia Monitor, its chief editor Bigeldy Gabdullin and journalist Sayat Musin.
The lawsuit was based on article by Sayat Musin, entitled “Yerasyl Abylkasymov – project man,” published in the paper on 16th December, 2005. The plaintiff sought 50 million tenge in damages.
On 30th January, 2006, the court dismissed another lawsuit filed by Abylkasymov against the same company, for the reason of failing to try to reach an out-of-the-court settlement.
Svoboda Slova (Almaty)
On March 10, Medeu District Court in Almaty, fined local businessman and opposition politician Bulat Abilov and Duniye company, which owns Svoboda Slova newspaper, 1 million tenge (approx. USD 7600) and 50 thousand tenge (approx. USD 380) respectively for “moral damages,” following the lawsuit by Adonis Derbas.
The Canadian businessman Adonis Derbas, seeking 10 million tenge (approx. USD 70 thousand) in damages, applied to the court because of transcripts of the interview by Abilov, published in the paper on 13 July, 2005. The material entitled “Who owns Kazakhstan” cited Abilov as saying: “An example of Canadian businessman Derbas Adonis, who shared business with Rakhat Aliyev. As soon as he began standing for his rights, he was convicted in 10 minutes, jailed for 15 days, and then deported from the country as a criminal.”
Derbas’ attorney, Kasken Nurkebayev, said the material was aimed at insulting the honor, dignity and business reputation of the plaintiff.
A textual analysis of the interview by an expert for the Adil Soz’ Center of Independent Expertise, philologist Rakhilya Karymsakova, showed “information contained in the article was neither offending nor insulting.”
Chief editor of Svoboda Slova newspaper, Gulzhan Yergaliyeva believes the court ruling is “crackdown on the opposition newspaper.”
Gennady Benditskiy, Vremya (Almaty)
On 3rd March, 2006, Zhetysu district court in Almaty ordered journalist Benditskiy and Vremya newspaper, to print a retraction and pay 500 000 tenge to Adonis Derbas for “moral damages.”
The lawsuit filed by the Canadian businessman Adonis Derbas was based on a 28 April 2005 Vremya article “A komu KTK? Nedorogo” (Who wants to buy KTK? It is not expensive at all). The court found the article to be insulting the honor, dignity and business reputation of Derbas.
The article claimed Derbas, who had invested USD 700 000 in business sector of Kazakhstan, was arrested, after being forced to close his business and then expelled from the country.
Another lawsuit over the same article was filed in April, 2005 by three other businesspeople Horani Issama Salah, Horani Devinchi Salah and Horani Gulshat. The Almaty Civil Court obliged the paper and the journalist to pay 70 000 and 30 000 tenge respectively to each defendant and retract the article.
By virtue of the article 143 of the Civil code of the Republic of Kazakhstan and normative decrees the Supreme court of the Republic of Kazakhstan of 18.12.92 #6 (with further changes) and 21.06.2001 # 3, civil legal responsibility for infringements on non-property rights, like honor, dignity and business reputation, 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.
n the meantime, monitoring registers increasing number of lawsuits, filed by private citizen, offended by any mistake or misprint, seeking damages and retraction, even though information was not insulting. Some of these plaintiffs win cases, despite normative decree by the Supreme Court of 1992.
We should also consider the fact that Kazakhstan ratified International Pact “on Civil and Political Rights.” Thus rulings, related to “protection of honor and dignity,” should be also based on international standards. The international community has stated its confidence that public organizations, political parties and their members should use rather public debates and programmes to stand for their rights, than courts.
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
Head of the monitoring service of the Foundation "Adil Soz"
Stebluk Natalia Fedorovna