Identifier
Created
Classification
Origin
09ASTANA431
2009-03-11 07:32:00
UNCLASSIFIED//FOR OFFICIAL USE ONLY
Embassy Astana
Cable title:  

KAZAKHSTAN: APPEALS COURT INCREASES FINE TENFOLD AGAINST

Tags:  PGOV PREL PHUM KDEM OSCE KZ 
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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

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
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