The Appellate Court deemed the newspapers: ‘Vzglyad’ and “one media outlet ‘Respublika’” extremist. The decision to ban the activities of the print media in Kazakhstan has taken effect. In violation of international treaties and domestic law, the Kazakh authorities have imposed censorship and prohibition of professional activities on individual journalists, thus putting their families in a difficult financial situation.
CONSIDERATION OF APPEALS, FILED BY ‘ONE MEDIA OUTLET ‘RESPUBLIKA’ AND THE ‘VZGLYAD’ NEWSPAPER
On 22 February, 2013, the Almaty City Court of Appeal upheld the lower court decision, according to which, on 25 December, 2012, “one media outlet ‘Respublika’” was considered extremist and its activities were banned in Kazakhstan. Previously, on 8 February, 2013, the Almaty City Court rejected a private complaint, filed by representatives of the ‘Golos Respubliki’ newspaper, who petitioned that the newspaper be allowed to operate until the decision to ban the activities of the newspaper entered into force.
The hearing was open, but Judge Raushan Adilbayeva refused to be photographed or captured on video (on 8 February, 2013, the court prohibited journalists from visually recording the prosecutor Timur Autalipov).
Formally, the defendant in the case was an inanimate object: “a newspaper”. In court, the defendant was represented by lawyers: Tamara Simakhina and Sergey Utkin (as third parties), as well as by Yelena Savinova and Gyuzal Baydalinova, who represented the owners of the newspapers: ‘Republican News – Business Review’, ‘The Republic – Business Review. Take 2’ and ‘The Republic – 2030’.
Media representatives stated in court that the prosecution’s lawsuit against the “one media outlet ‘Respublika’ is illegal, as it violates Art. 150 of the Code of Civil Procedure of the Republic of Kazakhstan (the CCP of the RK):
- The prosecutor’s office filed a lawsuit against “one media outlet ‘Respublika”’. Based on their own assumptions, the prosecutors named 8 newspapers and 23 Internet sources as participants of the media outlet. Still, assumptions cannot be used as evidence in a trial, and no judgement can be based on them. Under current Kazakh law, there is no concept of ‘one media outlet’.Media representatives have argued that each of the papers, listed in the lawsuit of the prosecutor’s office, is an independent medium with different editorial teams.
- According to Art. 48 of the Code of Civil Procedure of the Republic of Kazakhstan, a ‘newspaper’ (a medium) cannot be sued, as an inanimate object does not constitute a legalentity… In addition, Article 177 of the Code of Civil Procedure of the RK requires that the court hear the testimony of both the plaintiff and the defendant. An improper defendant – a “newspaper” – cannot produce a statement of defence.
Also, on 8 February, 2013, the Almaty City Court upheld the decision of the Bostandyk District Court (of 20 December, 2012) regarding the discontinuation of the publication of the ‘Vzlgyad’ newspaper, and the appeal was dismissed. The newspaper was represented by the lawyer Amangeldy Shormanbayev and the counsel Gennadiy Nam. The defendant referred to the court’s verdict in the case of 37 oil workers, in which all reasons, which had led to the riots in December 2011, were listed, and still, ‘Vzglyad’ was not mentioned in the document. The counsels of the ‘Vzglyad’ newspaper are going to file a complaint with the UN Committee on Human Rights, since such a decision of the Kazakh court is a precedent-setting case which limits the freedom of speech in Kazakhstan.
Overall, the trials of the “one media outlet ‘Respublika’ and the ‘Vzglyad’ newspaper were conducted under gross violations of Kazakh law and international standards of fair trial:
1. Deprivation of the right to defence (Article 13 point 2 of the Constitution of the Republic of Kazakhstan).
- The issue of banning the activities of the media outlets was considered in civil proceedings. The results of examinations, conducted in another criminal case, initiated against the opposition leader Vladimir Kozlov, served as the grounds for shutting down the media outlets. Still, no representatives of the opposition media were involved in Vladimir Kozlov’ case either as witnesses or as defendants. The court sentence against Vladimir Kozlov did not include points related to the banning of any media outlets or termination of their activities.
- Experts’ opinion, taken from the criminal case against Vladimir Kozlov, violates the principle of admissibility of evidence (Article 68 of the CCP of the RK). Firstly, all the experts (psychologists, linguists, political scientists), who recognised the media outlets as extremist, exclusively represented state bodies. Secondly, in their conclusions, the experts answered questions pertaining to the law, although this particular field is not their area of expertise. Thirdly, representatives of the media outlets were deprived of the rights to: challenge the experts, summon other independent experts, as well as to cross-examine the experts and to hear the evidence of the experts during the appellate proceedings.
2. Groundlessness of the court verdict (Article 218 of the CCP of the RK).
- According to Article 8 of the Law of the Republic of Kazakhstan ‘On Countering Extremism’, the recognition of an organisation as extremist is to be established in court. During the judicial processes, prosecutors didn’t name a single extremist sentence, ever published in the accused newspapers.In particular, the representative of the owner of the newspaper ‘The Republican News – Business Review’, Yelena Savinova, noted that the materials of the paper couldn’t have contained political extremism, as the medium published articles about social and medical issues.
- Instead of punishing individual authors of ‘extremist’ materials, the court banned the entire activity of the media. The court did not explain why it resorted to such a radical measure: an infringement of both freedom of speech and dissemination of information.
3. Violation of the principle of equality ofarms and competitiveness of the parties in a judicial process (Article 13 and 15 of the Code of Civil Procedure of the Republic of Kazakhstan).
- Not one significant motion of the defendant was granted by the court. Prosecutors Timur Autalipov and Irina Tsvetova disregarded the arguments of the defendant, did not file any objections or present their grounds for the lawsuit.
А BAN ON PROFESSIONAL JOURNALISTIC ACTIVITIES
Journalists of the “one media outlet ‘Respublika’ were not only forbidden to publish a newspaper called ‘Respublika’, but they were also forbidden to work together,which violates the right to freedom to work and to a free choice of occupation and profession.
Prosecutor Timur Autalipov, when speaking on 19 December, 2012, in the Medeu District Court, stated that one of the main criteria of a “one media outlet” is a common editorial team. On the basis of the judgement of the Medeu District Court to suspend the release of the “one media outlet ‘Respublika’,bailiffs seized a circulation of the ‘Azat’ and ‘Republic’ newspapers, despite the fact that the newspapers were not included in the “one media outlet”.
The use of such vague phrases with regard to an indefinite number of journalists allow prosecutors and bailiffs to prosecute journalists for their professional activities. The editorial team of the ‘Golos Respubliki’ newspaper has publicly stated that now “the journalists of ‘Respublika’ won’t be allowed to work in their current composition in any newspaper”,because the prosecutors could also arbitrarily classify them as “one media outlet ‘Respublika’ and ‘other means of dissemination of the ‘Respublika’ outlet’”.
The prosecutor’s office and the court refused to explain how journalists should proceed in connection with the ban on the activities of the “one media outlet ‘Respublika’. Journalist Anton Shin filed a request to the prosecutor’s office that it be explained to him whether journalists of ‘Golos Respubliki’ are allowed to print their articles in other papers. In their response, the prosecutor’s office of the Medeu District in Almaty disregarded the question of Anton Shin, limiting themselves to the statement that he is entitled to participate in the trial. At the trial, on 8 February, 2013, a representative of the publisher of the newspapers ‘The Republic – Business Review. Take 2’ and ‘The Republic – 2030’, Gyuzal Baydalinova, addressed Judge Kuralay Kalekeyeva with the same question, but the judge ignored the inquiry.
“There is an ongoing struggle against people who support a particular point of view. And these people are being restricted in their right to practice journalism”- such a disturbing finding was made by a human rights activist, Yevgeniy Zhovtis, after the process had come to an end.
The disregard of gross violations of procedural law by courts gives every reason to believe that the decision to shut down opposition media outlets has been made at the political level, and it is a manifestation of censorship, which is prohibited under Article 20 of the Constitution and Article 2 of the Law ‘On mass media’.