Update: 8 December 2017
On 30 November 2017, the Supreme Court of the Kyrgyz Republic, upheld the lawsuits against independent news website, Zanoza.kg (now Kaktus.media), its parent company, ProMedia, and journalists, Dina Maslova and Narynbek Idinov, despite appeals to the courts of the first and second instance.
“The trial of Zanoza.kg and its co-defendants is a clear indication of deteriorating press freedom in Kyrgyzstan,” says Katie Morris, Head of Europe and Central Asia at ARTICLE 19, “It’s recent disturbing conclusion will play a significant role in determining the boundaries of freedom of expression in Kyrgyzstan, having a chilling effect on freedom of expression in the country.”
On 28 November 2017 in Bishkek, Kyrgyzstan, ARTICLE 19, together with local partner the Institute for Media Policy, took part in an expert discussion on the implementation of the Law on Guarantees for Activity of the President of the Kyrgyz Republic (hereafter ‘the Law), under which these lawsuits were raised, and the development of a realistic strategy to change it.
From the moment the Law On Guarantees for Activity of the President of the Kyrgyz Republic (the Law) began to be applied in practice, it has been the subject of criticism by both local and international organisations. In March 2017, lawyers from the Ata Meken opposition party, appealed to the Constitutional Chamber of the Parliament of the Kyrgyz Republic to repeal the Law as it is in violation of the country’s constitution.
On 26 August 2017, ARTICLE 19 published a legal analysis of the Law and called for its abolishment finding it in violation of international standards for the following reasons: The Law itself is focused on protecting the ‘honour and dignity’ of a high-ranking public official – the President of the Kyrgyz Republic. International standards oblige public figures to tolerate a higher degree of (public) criticism than ordinary citizens, so the Law’s focus on protecting the President from negative statements made against him, brings it in direct contradiction to this principle.
In addition, the wording of the Law is excessively broad, meaning that its provisions are potentially endless in scope, giving practically unlimited freedom of action to the General Prosecutor to decide when the Law may be applied. Due to this overly broad language the Law also opens the possibility of violations of the principles of necessity and proportionality as it encompasses expression which falls within its broad remit.
The unlimited right granted to the General Prosecutor of the Kyrgyz Republic under this legislation does not have a place in democratic society. Due to the overly broad wording of the Law, there is also the real risk of disproportionate punishment for those found guilty of its violation, resulting in defendants being obliged to pay extortionate amounts in moral damages to the President. The Law therefore has a significant chilling impact on freedom of expression, suppressing debates on issues of public interest.
The urgency of this discussion of the Law at the 28 November expert discussion was further motivated by the fact that the defendants in the current cases are still obliged to pay damages to former President of the Kyrgyz Republic, Almazbek Atambaev, who since the end of his term in office on 4 December 2017 is no longer President of the Kyrgyz Republic. This raises a number of questions on the validity and implementation of the Law going forward.
Zanoza.kg and its co-defendants are still obliged to pay approximately £220,000 in moral damages to Atambaev, despite the fact that this level of punishment is disproportionate, and Atambaev has now left office. Failure to pay the fine risks imprisonment for the editorial board of Zanoza.kg and the other defendants and the ultimate closure of the publication.
ARTICLE 19 calls on the government of Kyrgyzstan to abolish the Law on Guarantees for Activity of the President of the Kyrgyz Republic and drop all charges against Zanoza.kg and the other defendants in the case.
Update: 21 August 2017
Last week, a Bishkek Court rejected appeals by Zanoza.kg (now Kaktus.media), an independent online news site, against three defamation lawsuits filed by the General Prosecutor to protect the President of Kyrgyzstan, Almazbek Atambayev’s ‘honour and dignity’. The media organisation and its journalists are now required to pay 12 million Kyrgyz Som (around £140,000) in moral damages to Atambayev. ARTICLE 19 reiterates its call on the Kyrgyz government to cease its harassment of the website.
A total of five lawsuits were originally raised against Zanoza.kgin spring 2017. As a result, the bank accounts of Zanoza.kg’s parent company, ProMedia, were frozen, travel bans were imposed on Zanoza.kg’s co-founders and journalists, Dina Maslova and Narynbek Idinov (pen-name ‘Naryn Aip’) and a lien was put the Bishkek apartment Idinov owns together with his mother and sister.
On Wednesday 16 August, Bishkek’s Pervomaiskiy district court upheld the 3 July ruling of Bishkek’s Oktyabrskiy court requiring the editorial board of Zanoza.kg (now Kaktus.media) and Idinov to each pay 3 million Kyrgyz Som, a total of 6 million Som (around £70,000) in moral damages to Atambayev. This followed an unsuccessful appeal to have the ruling overruled. The original lawsuit was raised against Zanoza.kg, ProMedia, Idinov and Maslova as a result of an article published in March 2017. The article was written in response to the arrest of opposition leader, Omurbek Tekebaev, which criticised his arrest and made comparisons between Kyrgyzstan’s leadership and well-known authoritarian rulers although did not mention Atambayev by name.
On Friday 18 August, a second appeal against a district court decision that ProMedia pay 3 million Som (around £35,000) in damages to Atambayev was also rejected. The original lawsuit had been raised against Zanoza.kg and ProMedia, as a result of an article citing comments made by Tekebaev’s lawyers following the plane crash close to Bishkek on 16 January 2017. The comments, made at a press conference in Tekebaev’s name, suggested that the plane had contained contraband ordered by Atambayev. An identical lawsuit brought against Radio Free Europe / Radio Liberty’s Kyrgyz service for publishing similar information had been dropped.
A third ruling was also upheld, with Zanoza.kg required to pay a further 3 million Som (around £35,000). This ruling related to material published on Zanoza.kg’s website of comments by Tekebaev that his recent trip to Cyprus was linked to an investigation into Atambayev’s business interests on the island.
Original article 1 August 2017
ARTICLE 19 and the Institute of Media Policy condemn the Kyrgyz government’s continuing legislative harassment of the independent online news site, Zanoza.kg, and its journalists. We call for the lawsuits brought against the website to be withdrawn, assets returned and the travel bans on its journalists lifted.
In March and April 2017 a total of five defamation lawsuitswere brought against Zanoza.kg for the publication of articles which prosecutors view as defamatory to Kyrgyzstan’s President, Almazbek Atambayev. These included articles which referred to Atambayev’s lavish lifestyle and contained allegations that he was involved in corruption. On 30 June 2017, the Oktyabrskiy court in Bishkek ordered Zanoza.kg, its parent company, ProMedia, co-founders and journalists, Dina Maslova and Narynbek Idinov (pen-name ‘Naryn Aip’), and activist, Cholpon Dzhakupova to pay a total of 27 million Kyrgyz Som (around £300,000) in damages.
On 25 July, following a lengthy and absurd copyright lawsuit, Bishkek’s Pervomaiskiy district court also ruled that Zanoza.kgshould no longer be allowed to use its name and logo. Idinov, a journalist and Zanoza.kg’s co-founder, believes these lawsuits together represent a ‘mass attack on Zanoza on all fronts’. In a press conference last week, Atambayev said the lawsuits would not be dropped and that they would serve as a ‘lesson’ to Zanoza, who he also claimed had caused the deaths of both his mother and brother through their‘defamatory’ reporting.
“These lawsuits represent a politically-motivated attack against critical media and reporters ahead of the October 2017 presidential vote in Kyrgyzstan”, said Katie Morris, Head of Europe and Central Asia at ARTICLE 19. “They pose a serious threat to the continuing existence of Zanoza.kg and the work of the journalists and human rights defenders charged alongside it.”
Background
The lawsuits were filed under Article 4 of Kyrgyzstan’s civil legislation on ‘Guarantees of the activities of the President of the Kyrgyz Republic’ which obliges the Prosecutor General to take legal action on behalf of the president if disseminated information has defamed the president’s honour and dignity. While Kyrgyzstan’s 2010 constitution decriminalised defamation, Article 4 of the law on ‘Guarantees of the activities of the President’ continues to provide a legal framework to bring defamation lawsuits against individuals and institutions who are critical of Atambayev, requiring them to pay huge sums in damages.
Article 4 is considered by many to be in contradiction to Kyrgyzstan’s 2010 constitution, which redefined the status of the President and General Prosecutor in such a way that the General Prosecutor should no longer have the legal right to raise libel lawsuits on the President’s behalf. On 3 May Klara Sooronkulova, a lawyer and former judge in the Constitutional Chamber of the Supreme Court of Kyrgyzstan, submitted a petition to the Chamber to appeal the constitutionality of Article 4. According to Sooronkulova, Article 4 is unconstitutional as “honour and dignity are personal characteristics of a person, and the President is an institution […] no one should personify him”.
However, on 30 June 2017 the Chamber declared Article 4 to be constitutional with the result that the libel lawsuits against Zanoza.kg and its journalists have been upheld.
International standards
The proper raison d’être of defamation laws is to protect individuals against false statements of fact that cause damage to their reputation and not to protect feelings or interests. According to international standards as outlined in ARTICLE 19’s Principles, defamation laws cannot be justified if their effect is to prevent legitimate criticism of officials or public figures or the exposure of official wrongdoing or corruption. The Principles also make clear that courts should take into consideration the clear distinction between statements of fact and statements of opinion in defamation lawsuits.
“Under no circumstances should special legal protection be granted for heads of state or other public officials, whatever their rank or status,” said Katie Morris. “Moreover, under international law the state has no right to bring a civil lawsuit of any kind on behalf of someone else, it is therefore deeply problematic that the General Prosecutor has initiated these lawsuits on Atambayev’s behalf.”
ARTICLE 19 and the Media Policy Institute call for the government of Kyrgyzstan to withdraw the lawsuits against Zanoza.kg, ProMedia, Maslova, Idinov and Dzhakupova, return their assets and lift travel bans imposed against them. The authorities should review Article 4 of the lawon ‘Guarantees of the activities of the President of the Kyrgyz Republic’and bring the country’s legislation in line with international standards.