Violations of freedom of speech in Kazakhstan. September 2019

The\r\nInternational Foundation for the Protection of Freedom of Speech \"Adil\r\nSoz\" conducted a study of the situation with the right to freedom of\r\nexpression, receipt and dissemination of information in Kazakhstan in September\r\n2019.

It reports:

- Journalist Amangeldy Batyrbekov is sentenced to two years and 10\r\nmonths in prison on charges of libel and insult.

On\r\nSeptember 23, the Saryagash district court sentenced Amangeldy Batyrbekov,\r\ncivil activist, editor of the newspaper Saryagash Info,  to two years and\r\n10 months in prison, finding him guilty of defamation and insult (art 130 and\r\nart 131 of the Criminal Code of the Republic of Kazakhtan).

Bakhtiyar Abdiev, the head\r\nof the education department of the Kelesky district, filed a complaint with the\r\ncourt caused by Batyrbekov\'s post  on Facebook entitled “Kelestegi keңkelestik”\r\n(“Idiocy in Keles”).

 In October 2015,\r\nBatyrbekov was already sentenced to one and a half years in prison for\r\ndefamation of Nurlan Saparov, the deputy prosecutor of the Saryagash district.\r\nAccording to the court’s verdict, the libel was contained in the article by A.\r\nBatyrbekov “Will the Prosecutor General hear the plea of the innocent if\r\nneither the law nor God hear it?\"  published on March 10, 2015 in the\r\nnewspaper \"Adilet\".

 In January 2016,\r\nAmangeldy Batyrbekov was released on non-rehabilitating grounds, and a year\r\nlater sentenced to two years in prison for the same article, but that time\r\nunder part 3 of Art. 411of the Criminal Code of the Republic of\r\nKazakhstan  - “Slander in relation of judge, jury member, prosecutor,\r\nperson, executing prejudicial investigation, expert, bailiff, officer of\r\njustice”.A. Batyrbekov pleads not guilty and insisted in the courts that his\r\narguments are based on personal inner conviction.

- The director of Pavlodar regional Center for Special Social Services\r\nfor the Elderly and Disabled N. Kubenov filed a lawsuit against journalist Olga\r\nVoronko for the second time. And for the second time he relinquished his claim.\r\nThe journalist believes that this way N. Kubenov is trying to bear\r\npsychological pressure upon her.

On September\r\n4, the ex-director of Municipal Public Institution “Center of special social\r\nservices for the elderly and disabled of Pavlodar region” Nigmat Kubenov  appealed to the Pavlodar city court again (on\r\nAugust 26 the court dismissed his claim by request of the plaintiff). His new\r\nlawsuit on the protection of honor, dignity and business reputation were  the editorial board of the newspaper Nasha\r\nZhizn and correspondent Olga Voronko just like in his previous lawsuit.The\r\ncause for the lawsuit was  the article\r\n“Pampers for the Dead” (dated March 28, 2019). It told about the results of\r\ninspection visit of  the Audit Commission\r\nof the Pavlodar region and the Department of Public Service and Anti-Corruption\r\nin the Pavlodar region to the Municipal Public Institution. The new lawsuit\r\nthat duplicated the previous one, does not include the claim regarding criminal\r\nprosecution of Kubenov for corruption, but it includes claims regarding the\r\ndissemination of information about his drunk driving  and his financial improprieties. N. Kubenov\r\ndemanded to oblige the defendants to refute that information and to compensate\r\nfor the non-pecuniary damage in the amount of 500 thousand tenge. The plaintiff\r\nalso demanded to pay him 150 thousand tenge of hospitality expenses and expenses\r\nfor paying the state fee and notary services (1050 and 6313 tenge\r\nrespectively).

On\r\nSeptember 18, N. Kubenov withdrew his lawsuit and the court  dismissed the lawsuit of N. Kubenov at his\r\nrequest again.

It should\r\nbe noted that after receiving the new lawsuit Olga Voronko appealed to the\r\nPavlodar regional court with an appeal against the court ruling on leaving the\r\nfirst lawsuit of Kubenov without consideration. She believed that Nigmat\r\nKubenov was abusing his right to apply to court and his repeated lawsuits\r\ndistracts her from work, besdies he \r\ntried to exert psychological pressure on her. So Olga Voronko demanded\r\nthat the court consider the claim of Kubenov and make its decision on it. Appeal\r\nhearings scheduled for October 10.

- Prosecutor\'s\r\nOffice modernizes slander and insult again

The draft Law of the\r\nRepublic of Kazakhstan “On Amendments and Additions to Some Legislative Acts of\r\nthe Republic of Kazakhstan on Improving Criminal and Criminal Procedure Laws”\r\nwas published on the website of the Prosecutor General’s Office of the Republic\r\nof Kazakhstan for discussion.

The second paragraph of\r\nPart 1 of Article 130 of the Criminal Code of the Republic of Kazakhstan\r\n(“Slander”) is proposed to be worded as follows: “shall be punished by a fine\r\nof up to two hundred monthly calculation indices, or by correctional labor in\r\nthe same amount, or by engaging in community service for a period of up to two\r\nhundred hours, or by arrest for up to fifty days\". In the first paragraph\r\nof the third part of Article 130, the word “corrupt” shall be deleted.

The developers ground the\r\nexclusion of the restriction of freedom from part 1 of article 130 by the\r\nimplementation of recommendation No. 13 of the Istanbul OECD Action Plan for\r\nCombating Corruption for Eastern Europe and Central Asia for 2017-2020 on the\r\nneed to repeal criminal liability for libel, insult and other similar acts.

“ Should this liability be\r\nretained provisionally, classify it as criminal misdemeanours, thus excluding a\r\npossibility for sanctions in the form of restriction or deprivation of liberty.\r\nRepeal aggravated qualifications of offences in relation to the dissemination\r\nof information about potential corrupt acts”, reads paragraph 6 of\r\nRecommendation No. 13.

The Adil Soz Foundation\r\nnotes: Kazakhstani authorities have repeatedly promised to bring the provisions\r\non freedom of expression in line with the international standards. For example,\r\nbefore  Kazakhstan\'s chairmanship in the\r\nOSCE and during it, the government assured that libel would be excluded from\r\nthe Criminal Code. However, in the new edition of the Criminal Code of the\r\nRepublic of Kazakhstan that entered into force on 01.012015, the liability for\r\nlibel was increased. An interdepartmental working group explained it this way:\r\n“In our opinion, the decriminalization of libel and insult will not promote\r\nfreedom of expression, but will lead to an increase of malicious attacks on the\r\nhonor and dignity of citizens, which contradicts the International Covenant on\r\nCivil and Political Rights in regards to the rights and reputation of others in\r\nthe exercise of the right to freedom of expression”. Adil soz believes that\r\nthis statement contradicts the fundamental documents of international\r\norganizations and national practice.

“The European Court of\r\nHuman Rights (ECtHR) has emphasized that the mere fact that the sanction is\r\ncriminal in its nature produces a disproportionate cooling effect. Even a\r\nconditional sentence has a long-term impact on the activities of journalists”,\r\nthe human rights activists commented on the draft amendments to article 130 of\r\nthe Criminal Code of the Republic of Kazakhstan.  “Judicial practice argues against the public\r\ndanger of slander. According to the data of the Committee on Legal Statistics\r\nand Special Accounts of the General Prosecutor\'s Office of the Republic of\r\nKazakhstan, in 2016-2017, 1,314 litigations on libel charges were held against\r\nabout 2,000 people. 93 people were recognized as slanderers. In 2018 total of\r\n962 cases were filed to courts against 1,167 persons; 19 people were convicted\r\nfor libel dissiminated through media”.

Adil Soz recommends to\r\ntransfer responsibility for deliberate libel to the sphere of civil law or to\r\nexclude imprisonment as a punishment for libel.

5  judicial acts were issued against media and\r\ncitizens in connection with the exercise of the right to freedom of expression\r\n, the receipt and dissemination of information on cases of protection of honor,\r\ndignity and business reputation in September\r\n2019. All five of them\r\nwere in favor of the media, journalists and citizens.

The following charges were filed  in connection with the exercise of the right\r\nto freedom of expression:

- 7 criminal charges, including 5 in\r\ncourt.

- 4 claims\r\nand suits in civil procedure. Among them, 3 claims for protection of honor,\r\ndignity and business reputation.

Claims for compensation for non-pecuniary damage in September 2019 amounted to 2.5 million tenge.

The following charges were filed\r\nsince the beginning of the year:

- 33 criminal charges.

- 52\r\nclaims and suits in civil procedure.

Among\r\nthem, 45 claims and lawsuits for protection of honor, dignity and business\r\nreputation.

- Claims\r\nfor compensation for non-pecuniary damage amounted to 74 million tenge. The courts\r\ncollected 2 million 290  thousand tenge.

- 15 – administrative offence charge.

The monitoring was done\r\naccording to reports of the Adil Soz Foundation\'s correspondents  and\r\ninformation from open sources.

Head of monitoring\r\nservice of Adil Soz Foundation Elena Tsoi
\r\ne-mail: lena@adilsoz.kz

For all questions\r\nregarding the  monitoring, you may also contact
\r\ninfo@adilsoz.kz