ICCPR Case Digest

CCPR/C/129/D/2535/2015

Communication

2535/2015

Submission: 2014.04.29

View Adopted: 2020.07.23

Lukpan Akhmedyarov v. Kazakhstan

Defamation suit against a journalist by public official leads to violation of the freedom of expression

Substantive Issues
  • Effective legal protection
  • Equality before the law
  • Fair trial
  • Freedom of expression
Relevant Articles
  • Article 14.1
  • Article 19
Full Text

Facts

The author is a journalist and a human rights activist – at the time of the events, he worked for the Uralskaya Nedelya newspaper. In February 2012, the author published an article about the family ties of several public officials that were serving in the local bodies. This article was accompanied with photographs of the public officials depicted as playing cards, to show the clannishness of the authorities.

As a result of the articles, the author and the newspaper faced several defamation lawsuits brought by large oil and gas companies, the Department of Internal Affairs of Zapadno-Kazakhstanskaya region and the public officials. As a result of the article and the lawsuits, the author faced several pressures in his workplace, in the public domain (he was stopped several times a day by police officers) and within his family life (his wife was subjected to pressure in her workplace).

Additional to this, in April 2012 – the author survived an assassination attempt, as he was shot and stabbed eight times in the chest area and near the heart. The author believes that this act was done due to his article and him organizing several protest events.

During the author’s hospitalization, the hearing for the defamation of character of a certain public official was heard. This public official confirmed his family ties to other public officials but besides this, a judge declared that the article had contained false information and had hurt the public official’s dignity. To this, the judge declared that the newspaper would publish an apology and that the defendants would need to pay a sum to the public official for this damage. The author then attempted to appeal this decision through several avenues, with no result. 

Therefore, the author claims that the State party violated his rights under Article 19 of the Covenant by punishing him for expressing his opinion and for exercising his freedom to seek, receive and impart information and ideas of all kinds.

Furtherly, the author claims a violation of his right to a fair and public hearing by a competent, independent and impartial tribunal under Article 14(1) of the Covenant. The author states that the courts did not consider the principle of equality of arms and did not take into account his arguments or the relevant provisions of international law. Additionally, the author claims that the court’s decisions were politically motivated. Finally, the author claims that his rights to a fair trial enshrined in Article 2(3)(a)-(c) of the Covenant were violated due to the fact of the trial being politically motivated and giving no regard to his defense.

Admissibility

Regarding the argument that the author’s right to a fair hearing by a competent, independent and impartial tribunal under article 14(1) of the Covenant was violated due to the unlawful and arbitrary nature of the court’s order to publish an official apology is noted by the Committee. Nevertheless, the Committee states that the decision of the court of first instance was quashed by the court of cassation. With regard to the author’s claim of a violation of article 14(1) due to the unlawful dismissal of his multiple written requests for the withdrawal of the judge, the Committee notes that these claims were not supported by the material evidence provided within the case file. Due to this, this part of the communication is inadmissible under article 2 of the Optional Protocol due to lack of substantiation.

With regards to the authors claims under article 2(3) of the Covenant that the State party failed to ensure his right to a fair trial, the Committee recalls its jurisprudence to the effect that the provisions laid down in article 2 set down a general obligation for State parties and this cannot give rise when invoked separately – to be able to be considered in the communication. Thus, as this claim was raised separately, this part of the communication cannot be considered as admissible under Article 3 of the Optional Protocol.

Therefore, from the alleged violations that the author has claimed, the Committee will consider the claims under articles 14(1) and 19 of the Covenant for the purposes of admissibility.

Merits

The Committee takes note of the author’s claim that the State Party violated his right to a fair and public hearing by a competent, independent and impartial tribunal under article 14(1) of the Covenant on the basis of the court’s bias approach to the litigating parties, its refusal to allow the author to make arguments of defense, the incorrect application of the State national law and the failure to take into account the relevant international law.

The Committee notes that by the court of the first instance hearing the case while the author was hospitalized, their failure to properly assess the evidence in the case file [according to the minutes provided and their selective approach to the expert assessments] and the State party’s failure to clarify the validity of these decisions – the Committee considers that the material before it discloses a violation according to Article 14(1) of the Covenant.

The author alleges that his rights under article 19 of the Covenant were violated, as he was ordered to pay compensation for the moral damages caused to the professional reputation and dignity of the public official due to the information released. The Committee notes that free, uncensored and unhindered press or other media is essential in any society to ensure the freedom of opinion and expression and the enjoyment of the other Covenant rights. Thus, the press and journalists should be allowed to contribute to the public debates concerning public figures and the public domain. Accordingly, so, journalists ensure a limited journalistic privilege to not disclose their sources, and not to be charged if untrue information is printed without malice.

In the present case, the file reveals that the information regarding the reputation of the person mentioned in the article was confirmed within the minutes of the public hearing. In addition, theinformation was published without any malice and within the journalistic and press freedom of contributing towards the debate in the public domain – the Committee finds that the State party has failed to justify their restrictions to the author’s freedom of expression. [violation of article 19]

Recommendations

The State Party is under an obligation to provide the author with an effective remedy. This requires the following:

  1. Provide the author with adequate compensation – including compensation for the moral damages imposed on him.
  2. Legal costs incurred by him at the national or international level.
  3. Take all necessary steps to prevent similar violations from occurring in the future.

Deadline for follow-up report : 27 May 2021.

 

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Implementation

Additional information : 

[Feb 2021] RSF Regional newspaper editor harassed after investigating real estate scandal

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