Criminal prosecution of a journalist for libel and restrictions on freedom of expression

Facts

The author is N.S., a Kazakh journalist who was prosecuted for criminal libel after an article critical of government contracting was published in the online newspaper Respublika under the pseudonym Bahyt Ilyasova in December 2013. A former member of parliament, M.I., filed a libel complaint, claiming that N.S. was the true author, and on 6 February 2014, the regional police investigation department summoned the author and asked about Ilyasova, wherein she denied knowing her. Subsequently, however, a forensic linguistic analysis ordered by the authorities concluded that Ilyasova was a pseudonym of N.S., and she was the true author. M.I. then brought criminal libel charges against her before Aktobe City Court No. 2. The court appointed a lawyer for N.S., but she says the lawyer never contacted her. Hearings were scheduled, but N.S. claims she was not properly informed. When she failed to appear, the court ordered her forced appearance and froze her assets in response to a civil claim by M.I. Before the next hearing, N.S. left the country. As a result, the court suspended the case, issued a search and arrest warrant, and transferred it to the prosecutor’s office. N.S. later found out about these actions online. After receiving refugee status in Ukraine, she hired a lawyer and tried to appeal, but the courts refused to consider her case due to the outstanding warrant.

In the present communication, the author alleges violations of articles 2 (3), 14 (1), 14 (3) (a), 14 (3) (d) and 19 of the Covenant, arguing that she was denied a fair trial, legal assistance, and the ability to appeal the charges, and that her prosecution for libel violated her right to freedom of expression.

Admissibility

The Committee found the communication inadmissible under article  2 of the Optional Protocol. It noted that the author’s claim under article  2 (3), read with article  14 (1), was insufficiently substantiated, as her departure from Kazakhstan had led to the suspension of proceedings in accordance with domestic law. Regarding article 14 (3) (a) and (d), the Committee observed that the criminal proceedings had not progressed to trial and that no formal charges had been presented against the author. Since the procedural guarantees under these provisions apply only after formal charges are brought, the Committee found these claims inadmissible. On the article 19 claim, the Committee recalled General Comment No. 34 (2011), which discourages criminal defamation laws. However, since the case had not resulted in a final judicial decision, the Committee determined that it could not assess whether the law had been wrongly applied, rendering the claim inadmissible under article 2 of the Optional Protocol.