A Kazakh court has ordered the owner of independent news outlet nakanune.kz to remove a letter from its website. The court has also ordered the website's owner, Guzyal Baidalinova, to pay Kazakhstan's leading bank more than $100,000 USD in alleged moral damages.
The following is an edited and abridged translation of an article published on adilsoz.kz.
On August 27, 2015, the Minor Court upheld its verdict on a claim put forward by Kazkommertsbank – the leading bank in Kazakhstan. Kazkommertsbank had filed a libel lawsuit against independent news website nakanune.kz, and had demanded compensation for moral damages.
The Municipal Court of Almaty ruled that nakanune.kz guilty was guilty as charged. The court then ordered Guzyal Baidalinova [a journalist, and the owner of nakanune.kz] to remove a letter that had been published on nakanune.kz. The court also ordered Baidalinova to pay Kazkommertsbank more than $100,000 USD in alleged moral damages.
Human rights activists and public figures consider this verdict as not fair and not legitimate.
Kazkommertsbank had filed a libel lawsuit against Guzyal Baidalinova on April 13, 2015. The subject of the claim was a letter written by a reader of nakanune.kz. The letter was about the alleged violation of construction standards during the construction of apartment buildings in Almaty that Kazkommertsbank has financed. The town council of Almaty city, however, had approved these building as suitable for living. The author of the letter assumed that, in this case, corruption was involved.
Reporters visited these apartment buildings and discovered that the reader’s allegations are true. Nakanune.kz then published the letter and urged law enforcement agencies to pay attention to it. However, the publication received no feedback on the issue.
Six months later, Kazkommertsbank considered that this letter had damaged its business reputation and demanded to have it removed from the site. The bank also demanded that Baidalinova pay 25 million KZT ($143,000 USD) in moral damages.
The Minor Court adjudicated its verdict on June 19, 2015, satisfying the claim of Kazkommertsbank to Guzyal Baidalinova, the owner of domain name nakanune.kz. The amount of compensation was reduced to 20 million KZT ($107,000 USD).
Guzyal Baidalinova sent an appeal which the Municipal Court of Almaty considered on August 27, 2015, and upheld the verdict of the Minor Court.
There were crude violations of laws during the trial, according to the local watchdogs – human rights activists, lawyers and public figures.
Judges of both courts used outdated articles of the Civil Code during the trial. According to Articles 141 and 143 of the Civil Code [of the Republic of Kazakhstan] which were amended in 2011, a juridical person cannot request from a physical person to compensate a non-pecuniary (moral) damages. The judges simply ignored this.
Journalists were denied to have a philological expertise of the text which helps to determine whether the author of the letter was making a statement or an allegation. This issue was the main subject of the dispute.
Kazkommertsbank couldn’t explain in which way its business reputation was damaged. The bank also couldn’t provide any evidence of what material losses were incurred.
Throughout the trial, Sergey Utkin, a human rights activist and lawyer, repeatedly emphasized that a juridical person cannot request compensation for non-pecuniary damages. He pointed out that “the Civil Code was amended in 2011 and it defines that a juridical person is entitled to protect its non-pecuniary rights – for example, its business reputation – but in such cases, material losses are covered, not moral damages. Thus, a juridical person, unlike a physical person, must prove that such losses were incurred.”
“My opinion is that the Minor court demonstrated a violation of the principles of a comprehensive and objective trial…” said Yevgeny Zhovtis, a renowned Kazakh human rights defender, commenting on the verdict of the Minor Court.
“This is not the first year when we witness such processes in the journalism field [in Kazakhstan]. The unrestrained, evil persecution starts after journalists take an independent stance, following the public interest, and media begin to question actions of government agencies or commercial entities. It seems that these people want only bought and menial journalism. This is a very serious problem for our society,” said Tamara Kaleyeva, President of Adil Soz, International Foundation for Protection of Freedom of Speech.
The chance that the Court of Cassation or the Supreme Court of the Republic of Kazakhstan will re-consider the verdict is close to zero. The last resort that remains for Guzyal Baidalinova and the editors of nakanune.kz is to appeal to the UN Human Rights Committee.
The website nakanune.kz was launched in May of 2014 by independent journalists for Voice of the Republic newspaper which was closed by Kazakh authorities for alleged “extremism,” but actually for its coverage of the December 2011 Zhanaozen massacre in and for its support of Kazakh opposition politicians and activists.
