KAZAKHSTAN: APPEALS COURT INCREASES FINE TENFOLD AGAINST

UNCLAS SECTION 01 OF 02 ASTANA 000431 SENSITIVE SIPDIS STATE FOR SCA/CEN, DRL E.O. 12958: N/A TAGS: PGOV PREL PHUM KDEM OSCE KZ SUBJECT: KAZAKHSTAN: APPEALS COURT INCREASES FINE TENFOLD AGAINST OPPOSITION PAPER REF (A) ASTANA 0006 (B) 08 ASTANA 2407 ¶1. (U) Sensitive but unclassified. Not for public Internet. ¶2. (SBU) SUMMARY: On February 26, the Almaty City Court ordered the opposition newspaper "Taszhargan" to pay a 30 million tenge (approximately $200,000) damage award to parliamentarian Romin Madinov. This appellate decision increased ten-fold a district court's January decision to grant Masimov 3 million tenge (approximately $20,000) in damages. Opposition and centrist media representatives see the appellate decision as a deliberate warning to journalists. Our sources say neither the paper nor the journalist involved in the case can pay the fine and expect the paper to shut down within one to two weeks if the decision is not reversed. END SUMMARY. AWARD INCREASED TEN-FOLD ¶3. (SBU) On January 16, Almaty's Medeu District Court ruled that the opposition newspaper "Taszhargan" and journalist Almas Kusherbayev must pay a 3 million tenge (approximately $20,000) damage award for an op-ed Kusherbayev wrote purportedly insulting Romin Madinov, a member of the Mazhilis (the lower house of Parliament). The offending op-ed piece referred to Madinov as a "latifundist" or "land baron" (ref A),and hinted, without referring to specific facts, that Madinov was involved in very shady, if not outright illegal, business activities. The court also ordered "Taszhargan" to print a retraction. Yermurat Bapi, Editor-in-Chief of "Taszhargan," appealed the original ruling, arguing the damage award was unreasonable and disproportionate. However, on February 26, the Almaty City Court answered his appeal by increasing the damage award ten-fold, to 30 million tenge (about $200,000). ANALYSTS DEPLORE APPEALS COURT DECISION ¶4. (SBU) In a meeting with EmbOff on March 4, journalist Almas Kusherbayev said he expects the paper will close within a few weeks if the damage award is not reversed. Kusherbayev said that while the Supreme Court does have the final say in the case, he was doubtful that it would rule in the paper's favor, even if it did choose to review the case. Kusherbayev expressed frustration at what he claimed is "repression of freedom of speech" and said the press should not be silenced from reporting on influential officials. Kusherbayev claimed that Madinov is more powerful than other �00A;parliamentarians, alleging he was "the one who put forth the 2007 amendment to Kazakhstan's constitution which eliminated terms limits for President Nazarbayev." (COMMENT: Kusherbayev's comments may be a bit of an exaggeration. Madinov was one of several Mazhilis members to put forward the amendment proposal; however, we have no evidence to support Kusherbayev's claim that Madinov holds more sway than other parliamentarians. END COMMENT.) ¶5. (SBU) When asked why the appellate court would dramatically increase the damage award, Kusherbayev said he suspected three objectives. First, he said it was clear "the government wants to shut me up and get me to stop publishing articles." Second, Kusherbayev stated Madinov's personal goal is to prevent the publication of future negative stories about himself. Kusherbayev commented that Madinov used an approach to combat negative press that is similar to what President Nazarbayev's former son-in-law, Rakhat Aliyev, used in the past, when he was still serving in powerful positions in Kazakhstan. (NOTE: Aliyev sued media outlets "Svoboda Slova," "Navigator," and "Vremya Po," and the NGO "Internews Kazkahstan." END NOTE). Kusherbayev stated the third and final goal of the recent decision is to completely shut down "Taszhargan." APPEALS DECISION "ILLEGAL AND POLITICALLY MOTIVATED" ¶6. (SBU) During a frank discussion of the case, Tamara Kaleyeva, direct of the media NGO "Adil Soz," said the decision is "precedent setting." Kaleyeva admitted that while no one is openly discussing it, Kusherbayev did not have proof to back the allegations contained in his op-ed. Nevertheless, she stated the appeals court decision was "politically based and illegal." She commented the decision had two objectives: to purposefully frighten journalists and to shut down "Taszhargan." She said that the amount of the award ASTANA 00000431 002 OF 002 "contradicts reason" and the law. Kaleyeva noted that according to Kazakhstani law, "moral damages" should be "within reason," taking into the account the finances of the paper or journalist involved. (NOTE: "Adil Soz" organized a demonstration to protest the ruling against "Taszhargan" at the Almaty City Court on March 10. Approximately 50 people, mostly human rights activists and journalists -- including leading civil society figure Yevgeniy Zhovtis -- participated in the peaceful demonstration. Representatives of the protestors were allowed inside and discussed their concerns about the case with Raushan Adilbayeva, the head of the Court's collegium. Adilbayeva reportedly responded that the protest constituted "pressure" on the Court, and that the ruling has gone into force and her Court can not change it. END NOTE.) ¶7. (SBU) Adil Jalilov, director of the NGO "Media Net," was at first wary to discuss the case. He pointed out that his NGO is primarily concerned with media training, not legal issues. Similar to Kaleyeva, Jalilov commented that Kusherbayev could not prove the claims in his op-ed. However, he too found the appellate court decision to be excessive. Jalilov was careful to walk a fine line when speaking with EmbOff, as he expressed surprise at some of the topics and articles which newspapers like "Taszhargan" have chosen to publish in the past. Jalilov expressed concern about papers that publish articles that can stir up ethnic tensions and incite hatred. (NOTE: In December, "Taszhargan" was fined approximately $3300 for publishing an article which quoted someone using an ethnic slur against Kazakhs. END NOTE.) ¶8. (SBU) COMMENT: We understand that on March 5, OSCE Freedom of the Media Representative Miklos Haraszti sent Foreign Minister Tazhin a letter on the "Taszhargan" case, expressing his hope that the Supreme Court would revise the decision, and explaining that in accordance with Council of Europe standards and OSCE commitments, there should be reasonable, proportionate damages in defamation cases that do not bankrupt or endanger media outlets. We agree with Haraszti, and the Ambassador thus raised the issue with Presidential Human Rights Commission Chairman Saginbek Tursunov during a March 10 meeting. From our own reading, Kusherbayev's "Taszhargan" op-ed appears to be deliberately offensive piece of journalism, accusing Madinov, in very sarcastic terms, of cornering the Kazakhstan's wheat market, including through corporate raiding (which in Kazakhstan means acquiring businesses by forcing their owners to sell them to you at a below-market price), and of having become a Mazhilis member solely to advance his businesses interests and acquire legal immunity. According to Kusherbayev's op-ed, Madinov nevertheless lost out in his efforts to make big profits from his monopoly power, because the government placed a (temporary) ban on wheat exports. All of these accusations may be true, but unfortunately for Kusherbayev, none of them were backed up by any reference to facts. At the same time, it is not unprecedented for well-connected figures to influence court decisions. END COMMENT. HOAGLAND