"False information" laws must not be used to silence the media in Kazakhstan

May 22, 2018

IFEX members call on officials in Kazakhstan to review recent civil and criminal actions taken against critical media outlets under the law for 'dissemination of deliberately false information'.

To: Mr. Kozhamzharov K., General Prosecutor of the Republic of Kazakhstan Mr. Asanov Zh., Chairman of the Supreme Court of the Republic of Kazakhstan Mr. Nigmatulin N., Chairman of the Mazhilis of Parliament of the Republic of Kazakhstan Mr. Abayev D., Minister of Information and Communication of the Republic of Kazakhstan

The undersigned members of the IFEX network write to express our concern over recent civil and criminal cases brought against members of the Kazakh media, as well as irregularities surrounding the court and police proceedings. We ask that you use your authority to protect the constitutional right of citizens to freely receive and disseminate information by investigating the conduct of the law enforcement and judicial representatives in question, and taking action to rectify violations where necessary. We also ask that you review Kazakhstan's laws that levy disproportionate penalties against journalists and media outlets, due to the threat they pose to critical reporting, to ensure they meet international standards for reasonable scope and proportional punishment.

On 31 March, a judge granted a request by state prosecutors to block the online publication Ratel.kz and prohibit its editor-in-chief, Marat Asipov, from publishing content under this title. Neither the media nor the general public were initially made aware of the grounds for this action. Regardless, the domain ratel.kz and affiliated websites, balborsyk.kz and wildratel.com were instantly blocked. It was later revealed that the site had been taken down for violation of the "Rules for the Registration, Use and Distribution of Domain Names on Kazakhstan's Internet", including publication on the domain name after the death of its original registrant Gennady Benditsky, and for publishing content in Kazakh and English, while its certificate of registration lists only Russian.

On 2 April, in violation of normal procedural rules, police searched and seized documents and equipment from the offices of Ratel.kz and Forbes.kz. Several staff were detained for interrogation and forced to sign non-disclosure agreements. In addition, police reportedly refused to produce a warrant when requested.

These actions followed a claim filed by businessman and former finance minister Zeinulla Kakimzhanov against journalists working for Ratel.kz and Forbes.kz for a series of stories alleging misconduct in his business dealings – a claim that has since been upgraded to a criminal suit accusing the journalists of 'dissemination of deliberately false information' under Article 274 of the Criminal Code of the Republic of Kazakhstan.

We are concerned that the growing pattern of disproportionate, and in some cases, illegal actions taken by the prosecutor's office and the judiciary against Ratel.kz and a number of other media suggests misuse of Kazakhstan's legal system to silence normal criticism crucial to the functioning of a well-ordered democracy. We observe that these actions aimed at censoring media criticism are in flagrant violation of free expression protections under Article 20 of the Constitution of Kazakhstan, as well as Kazakhstan's obligations under the International Covenant on Civil and Political Rights. Failure to abide by the provisions of these documents would give Ratel.kz strong grounds for submitting a complaint to the Office of the High Commissioner of Human Rights, claiming misconduct in the decisions of judicial bodies in the civil dispute between Mr. Kakimzhanov and journalists of Ratel.kz and Forbes.kz.

We further remind you that Article 274, which formed the basis for Mr. Kakimzhanov's accusation, has itself been criticized by national and international experts alike. For example, following the consideration of Kazakhstan's second periodic review in 2016, the UN Human Rights Committee expressed its concern about legislation and practices " . . . that violate freedom of opinion and expression," including through " . . . broad application of the provisions of the criminal laws including . . . dissemination of knowingly false information to persons exercising their right to freedom of expression."

The application of this article of law, introduced into the Criminal Code of Kazakhstan in 2015, has had severe consequences in the past. On 5 July 2016, Tair Kaldybaev, an Almaty businessman who was sentenced to 4.5 years imprisonment for the dissemination of deliberately false information about Kazkommertsbank, was found hanged in his prison cell on the eve of his appeal date. Kaldybaev had been convicted along with a Kazakh journalist, Guzyal Baidalinova, whose sentence was eventually suspended.

Given the above, we call on your offices to:

- Review the recent activities of the judiciary and police around Ratel.kz and affiliates and ensure that any violations of Kazakhstan's laws and international standards are investigated and appropriately addressed.

- Revisit Kazakhstan's legislation around dissemination of false information with consideration to the recommendations of the UN Human Rights Committee and other experts. We request you to ensure that Article 274 be narrowly defined, so as not to unduly interfere with the normal exercise of freedom of expression rights, including the right to report controversial facts and strongly criticize government and powerful social actors.

Sincerely,

• Adil Soz – International Foundation for Protection of Freedom of Speech
• Albanian Media Institute
• Americans for Democracy & Human Rights in Bahrain (ADHRB)
• Cartoonists Rights Network International (CRNI)
• Center for Media Freedom and Responsibility (CMFR)
• Committee to Protect Journalists (CPJ)
• Electronic Frontier Foundation (EFF)
• Foro de Periodismo Argentino
• Independent Journalism Center – Moldova
• Index on Censorship
• International Press Institute (IPI)
• Media, Entertainment and Arts Alliance
• Media Institute of Southern Africa (MISA)
• Media Watch
• National Union of Somali Journalists (NUSOJ)
• Norwegian PEN
• Pakistan Press Foundation
• PEN American Center
• PEN Canada
• PEN International
• Reporters Without Borders (RSF)
• South East European Network for Professionalization of Media
• South East Europe Media Organisation
• Syrian Center for Media and Freedom of Expression (SCM)
• Vigilance for Democracy and the Civic State
• World Association of Community Radio Broadcasters (AMARC)

Link to original story on RSF website