IV. The Right to Freedom of Expression

Kazakhstan does not meet OSCE commitments, or its obligations under international law in general, in relation to the promotion and protection of freedom of expression. The broadcast media are dominated by government loyalists, and a growing proportion of the nation's media outlets are directly owned by the government.

Independent journalists are threatened and harassed for criticizing the president or government policies and practices. Libel continues to be a criminal offense, with harsh penalties including imprisonment and hard labor. Journalists have little, if any, protection from civil libel claims, and there is no legal limit on damages: the result is that spurious cases are frequently brought against journalists who, in many cases,  feel obliged to pay out in settlement out of court. These conditions contribute to an atmosphere of anxiety and self-censorship among media professionals.

Legal Provisions

Kazakhstan, as a state party to the International Covenant on Civil and Political Rights, is obligated to protect the right to freedom of expression, as set out in article 19 of that covenant:

1. Everyone shall have the right to hold opinions without interference. 2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. 3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre publique), or of public health or morals.

Various OSCE documents also commit participating states to protect the freedom of expression. For example, the Istanbul Charter on European Security of the OSCE states,

We [participating states] reaffirm the importance of independent media and the free flow of information as well as the public's access to information. We commit ourselves to take all necessary steps to ensure the basic conditions for free and independent media and unimpeded trans-border and intra-State flow of information, which we consider to be an essential component of any democratic, free and open society.[86]

The participants in the 1991 Moscow meeting of the then CSCE's Human Dimension Conference unambiguously agreed that "independent media are essential to a free and open society and accountable systems of government and are of particular importance in safeguarding human rights and fundamental freedoms,"[87] and that any "restriction in the exercise of the right of expression of opinion will be prescribed by law and in accordance with international standards."[88]

Kazakhstan's domestic law also guarantees the right to freedom of expression. Article 20 of the Kazakh Constitution guarantees each citizen "freedom of speech" and enshrines "the right to freely receive and disseminate information by any means not prohibited by law. Propaganda of or agitation for the forcible change of the constitutional system, violation of the integrity of the Republic, undermining of state security, and advocating war, social, racial, national, religious, class and clannish superiority as well as the cult of cruelty and violence shall not be allowed." The same article prohibits censorship.[89]

Article 2 of the current law "On mass media" reaffirms the provisions made in the constitution but states, "It is not allowed to disclose information that constitutes state secrets or other secrets protected by law; propagate and justify extremism or terrorism; disseminate information revealing techniques and tactics of antiterrorist operations during their implementation; promote the use of narcotic drugs, psychotropic substances and precursors; as well as pornography."[90]

The New Draft Law on Mass Media

On November 29, 2007, Foreign Minister Tazhin promised the OSCE in Madrid that his government was "going to incorporate various proposals into a consolidated bill to amend the media law, which will reflect the OSCE recommendations as well."[91] But two months later, in January 2008, the Ministry of Culture, Information and Public Accord rejected for the second time a draft media law compiled and proposed by a group including civil society representatives.

A notable aspect of the civil society draft was its proposal to liberalize the registration procedures for media outlets. The current system requires new media outlets to secure permission from the Ministry of Culture in order to begin operating; the ministry requires the compilation of documentation that is cumbersome, and itself often drags out the process for many months. Under the draft, new outlets would have needed only to inform the Ministry of Culture in order to start operating.[92]

After its January rejection of the draft, the ministry announced that a new law would be drafted, and established a working group consisting of 10 government and four NGO representatives to discuss proposals for a new draft. During the first meeting of this working group, the government participants suggested several amendments to the mass media law, which appear to be reflected in the draft law the government sent to parliament on November 11, 2008.  The draft amendments would abolish the registration requirement for electronic (that is, television and radio) media, protect the right of journalists to maintain confidentiality of sources (except in "special cases"), allow journalists to taperecord interviews without the interviewee's consent, and reduce criminal penalties for libel. According to the media watchdog organization Adil Soz (one of the participants in the working group), the first suggestion is insignificant because all TV and radio stations must obtain a broadcasting license from the government, making registration a rather unimportant issue for them. The proposed exception for "special cases," with respect to maintaining the confidentiality of sources, refers to the exceptional need to reveal sources that are critical to solving a crime. This, however, could open up a loophole.[93] And the proposal of reducing the current maximum penalty of six months imprisonment[94] for criminal libel would not address the real problem that having such an offense in criminal law causes to free expression. According to Adil Soz no journalist has actually been imprisoned for libel during the past 10 years. The problem is rather that the threat of prosecution for criminal libel is used by the authorities to silence journalists.[95]

Criminal libel laws are routinely used to intimidate and silence opposition media and political activists, to keep pressure on them, and to keep them occupied in defending legal cases against them (see below). Media watchdogs generally argue that libel should be dealt with as a civil issue between two individuals or legal entities, not a criminal act.[96] So far, all attempts by journalist and media organizations to have criminal penalties for libel in the Criminal Code repealed have been unsuccessful.

The second meeting of the media law working group, scheduled for May 27, 2008, was postponed indefinitely without explanation, although the appointment of a new minister of culture may have been a factor. The working group ultimately met on July 18 for one hour, which did not allow adequate time discussion, according to Adil Soz. On July 21, the members of the working group received a draft law from the head of the working group. According to Adil Soz, it did not include any ideas proposed by civil society groups. The members of the working group were told that they had one day to examine the draft and submit their comments "because the government wants to see this done quickly."[97] After the third meeting of the working group on September 17, Adil Soz issued a statement that the draft law presented by the ministry contained only very few superficial changes suggested by civil society groups and that it can be considered at best "a tiny first step" toward meeting international standards.[98]

Media Background

Although numerous, media outlets in Kazakhstan remain substantially under government control through a variety of direct and indirect means. Of some 2,500 functioning media outlets,[99] a growing proportion are owned outright by the government.[100]

Most Kazakh media organizations are local or regional, but eight television channels, four radio stations and twenty newspapers enjoy national coverage.[101] Among the more influential print publications are the state-owned Kazakhstanskaya Pravda and Yegeman Kazakhstan, whose editors-in-chief are appointed by the government, as well as the popular magazine Karavan and the independent newspaper Vremya. National publications have average circulation rates in excess of 100,000 copies.[102] Major television outlets include the state-owned Kazakh TV and Eurasia TV, as well as Khabar TV and Kazakh Commercial Television (KTK).

The government consolidated its control over the media when Samgau, a state-owned company, purchased all the remaining privately-held stock in Khabar, once the country's most important private media group, at an auction on March 21, 2008.[103] Khabar, which controls Karavan, Khabar TV, and another national television station, Caspionet, was previously owned by Rakhat Aliev, the then-husband of Dariga Nazarbaeva, the president's daughter. It owns the only TV channel that can be seen in all 16 provinces of Kazakhstan. In 2007 Aliev, who had fallen out of favor with the government, began to criticize the government through his media holdings. Kazakh prosecutors charged Aliev, then serving as his country's ambassador to the OSCE, with among other things, kidnapping two prominent Kazakh bankers.[104] In March 2008 a Kazakh court sentenced him in absentia to 20 years' imprisonment for the kidnappings and several other grave crimes, and stripped him of his assets, leaving the company open to the government buyout, and he was later handed another 20-year in absentia sentence for plotting to overthrow the government.

In July 2008 the government's most important media assets, including Khabar, were combined into a government-created holding company, Arna Media, which would imply either full or informal but effective government control over it.[105] Nongovernmental organizations that monitor the media, such as Adil Soz and MediaNet, therefore interpreted this development as a further attempt by the government to ensure no further development of the independent media.

While major radio and TV outlets have long been under the control of the government and websites critical of the government are often blocked by the authorities, print media still have some scope for investigative journalism, criticism of the government, and other manifestations of freedom of expression. The degree of freedom, however, depends on the relationship the newspaper and its editor-in-chief have with the local authorities. Gulzhan Ergalieva, chief editor of the Russian-language independent Svoboda Slova, which is published several times per week, believes that the question of free speech and the degree of media freedom depend largely on the key figures advising the president:

Mass media is under regular attention and control of the authorities. They have categorized the media and in their relation with each newspaper they proceed according to a certain tactic. For example, is it possible to make a deal with this newspaper? How shall we approach this newspaper, as a whole or its parts?[106]

In July Ergalieva gave the opinion that, in connection with Kazakhstan's 2010 chairmanship of the OSCE, the government recognized that a free press is needed to a certain extent, and therefore tolerates print media such as Svoboda Slova. The government uses the paper as a means to attest that media freedom exists, she contended: "Nazarbaev tries to improve his rating, and the existence of some independent newspapers is a plus for him."[107]

Not every newspaper has had this good fortune. In February 2008 an Astana court ordered the independent newspaper Law and Justice closed on grounds that it was improperly registered. Tokbergen Abiev, the editor-in-chief, said the court made its decision based on a mix-up between two different companies of the same name. He believed the confusion to be deliberate and politically motivated: Law and Justice had recently published allegations of corruption among the judiciary. It was the first closure of an independent newspaper in Kazakhstan in more than a year.[108]

Restrictions on Freedom of Expression

Journalists have described to Human Rights Watch how they operate in an environment of anxiety, fueled by having to deal with constant lawsuits and, at times, direct threats to their person. Even if journalists do not admit to self-censorship, they do speak privately of the tightly regulated environment and topics they decided not to cover. As Gulzhan Ergalieva put it, journalists are considered to be either for the government or anti-government-"either you are ours or the enemy." Any media that present a critical view of the authorities are immediately labeled "oppositionist."[109] Threatening phone calls, visits by the police, and successive lawsuits are common.

Threats and harrassment

Arrests, beatings, and imprisonment of journalists are rare in Kazakhstan. A glaring exception was the brutal beating of Marcus Bensmann, a German independent investigative journalist. Between 3 and 4 a.m. on the morning of January 20, 2008, the 38-year-old journalist left the Chocolate night club, where he was researching a documentary on Astana as a booming city. Around three hours later, a passerby found Bensmann on the street, beaten and without shoes or a jacket, in -20ºC, windy weather.  Bensmann was registered at a private hospital at 8:05 a.m. and diagnosed with a skull fracture, fractured jaw and ribs, and frostbitten limbs.[110] He was repatriated to Germany shortly thereafter, where he underwent further hospital treatment.

Ten days later police arrested three people in connection with the assault.  In July, Kazakh Ministry of Internal Affairs officials traveled to Germany to return to Bensmann items the assailants had stolen-including his cell phones, shoes, watch, and jacket-and to take Bensmann's statement about the incident.[111]

The assailants were charged with robbery, endangerment, and unlawful deprivation of freedom, charges that do not reflect the gravity of the injuries Bensmann sustained.

Because Bensmann was not notified of the trial's scheduled start in September 2008, his lawyer successfully petitioned to have proceedings postponed until November 21. The trial is in process at this writing.[112]

Kazakh authorities tried to convince Bensmann the assailants sought only to rob him and that the incident had nothing to do with his journalism.[113] While it is not possible for Human Rights Watch to ascribe a motive, Bensmann's reporting on human rights abuses and corruption in Central Asia, as well as the documentary he was researching in January 2008, could potentially have made him a target for assault.

Generally, officials use more subtle ways to send intimidating message to journalists and editors not to step out of line. For example, Bakhytgul Mekimbai has been a journalist at the widely distributed independent newspaper Taszhargan for about 10 years. Over this time she has been harassed on many occasions. When we met with her, the most recent incident had occurred in March 2008:

One day in March, after I got home from work at around 8:30 p.m., the neighborhood police was ringing my bell. When I asked them what they wanted they told me that they had received anonymous phone calls informing them that a foreigner was bringing women into my apartment.… Then they asked me where I am working, as if they would not know. There was a security agent from the KNB with them. I told them that I am a journalist working on an independent newspaper that is anti-Nazarbaev. They apologized and left.[114]

The newspaper's offices were shot at, shattering its windows, on the night of March 31, 2008. Although the police opened an investigation, at the time of the interview with Mekimbai, four months later, no perpetrators had been identified.[115]

Journalists reported to Human Rights Watch that direct physical attacks by the police, against journalists personally and the physical property of editorial offices have decreased in the past couple of years. "Things are much better now," said Gulzhan Ergalieva of Svoboda Slova, "Two or three years ago there were murders [of journalists], court cases, and beatings. Now the authorities and the police have changed their tactics." Ergalieva said that before the presidential elections in 2005, the police physically prevented her newspaper from being published. After a public and international outcry following these actions, the government altered its approach. "Now they have us under surveillance, tap our phones. The authorities follow our movements, our conversations." Ergalieva explained that she was conscious of being tailed on her way to and sometimes at important meetings or business dinners, with the "tail" sitting close to her in order to better listen to the conversation. She recalled specific instances when, "after certain telephone conversations [plainclothed security agents] would appear at our meetings. Things like that." She further explained that the nationwide print media suffer less from threats and harassments than local newspapers. The small papers are much more vulnerable to harassment by local authorities.[116]

Use of defamation laws to harass journalists

In the first half of 2008 the authorities opened seven criminal cases against journalists for alleged defamation; in 2007 the total was 27. Kazis Toguzbaev, a reporter for the independent newspaper Azat, was given a two-year suspended sentence in January 2007 for "insulting the honor and dignity" of President Nazarbaev in two articles he published on the website Kub in April and May 2006. Toguzbaev told Human Rights Watch about the conditions of the court ruling:

They warned me that if I write anything else like this that my suspended sentence will automatically be converted into a real one and they'll add on another new criminal case.… Serving a suspended sentence doesn't mean you can relax, it means that if there is another criminal case, there is a new sentencing plus the one you haven't finished.[117]

In April 2008 a district court in Almaty revoked the verdict and expunged the conviction from Toguzbaev's record. The judge's ruling stated that Toguzbaev had "demonstrated by his behavior that he was reformed."[118]

Civil libel lawsuits that involve huge amounts of compensation are another means by which a newspaper can be put under pressure and bankrupted. Olga Volkova, a lawyer with the watchdog group MediaLife in Karaganda, told us in July 2008, "I am not aware of libel cases that resulted in a journalist [who served prison time] in the last six years, but the number of civil lawsuits has increased dramatically in the last year and a half."

Emurat Bapi, the former editor of the independent newspaper Taszhargan[119] came under heavy surveillance in spring 2008. So he took a picture of the car following him and the newspaper ran an article with the photo of the car and its number plate in the newspaper on May 13. The article claimed Bapi was being followed by the security services. Three weeks later, the man who owned the car lodged a defamation suit against Taszhargan's current editor Bakhytgul Mekimbai and claimed 10 million tenge (about US$83,500) compensation. Eventually Mekimbai and the man reached a settlement: Taszhargan published a partial correction, and the plaintiff withdrew his claim.[120]

Erlan Jitenov, chief editor of an independent Karaganda weekly Vzglyad, told Human Rights Watch that the newspaper is sued, on average, once a month. WhenVzglyad issues critical articles, those who come under criticism feel they "have to defend their reputation." For example, when the newspaper writes about workers not getting paid on time the company in question will sue for damages to their reputation.[121]

According to Volkova of MediaLife, one of the problems with the increasing number of lawsuits is that the law does not differentiate between factual information and opinion. She believes that journalists must have the right to express their opinion and not be sued for this. In addition, she argues in favor of a reasonable cap on defamation awards.[122]

Self-censorship

Human Rights Watch's interviews with journalists and media organizations indicate that not direct censorship but self-censorship is the more problematic issue for journalists. The authorities use elaborate tactics to push journalists into self-censorship without directly forbidding them to publish certain articles.

Journalists generally told Human Rights Watch that they do not apply self-censorship but acknowledged that they would not write about certain issues that are too "complicated" or too "hot" such as religious issues or ethnic problems.

Vyacheslav Abramov, director of the journalism center MediaNet, told Human Rights Watch that self-censorship is the worst problem for journalists in Kazakhstan. When he was working as a journalist in 2002-03, there was an informal list of people-various politicians, opposition leaders, political scientists, analysts, and the like-about whom articles or information would not be published or whose names could not even be mentioned, and he told us that he believes the situation has not changed.[123]

According to Gulzhan Ergalieva, editor of the weekly Svoboda Slova, self-censorship is a problem not only for journalists but for society as a whole. "There is a culture of fear in which journalists operate, so even if the authorities are not cutting words from articles, journalists are thinking about whether they can say certain things. Self-censorship is a reality in Kazakhstan." Her newspaper has asked members of the government to submit articles, but they refused to be published in what is considered an "opposition" newspaper. "If a governor talks to us, it means he is with the opposition."[124]