{"id":5885,"date":"2014-01-29T03:16:35","date_gmt":"2014-01-29T03:16:35","guid":{"rendered":"https:\/\/soros.kz\/kazakhstans_international_obligations_of_freedom_of_speech\/"},"modified":"2018-02-21T15:36:53","modified_gmt":"2018-02-21T09:36:53","slug":"kazakhstans_international_obligations_of_freedom_of_speech","status":"publish","type":"post","link":"https:\/\/www.soros.kz\/en\/kazakhstans_international_obligations_of_freedom_of_speech\/","title":{"rendered":"Kazakhstan\u2019s International Obligations to Freedom of Speech"},"content":{"rendered":"
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Kazakhstan\u2019s international obligations to freedom of speech are settled by the International Covenant on Civil and Political Rights.<\/div>\n
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Article 19 of the Convent, first, guarantees the right \u201cto hold opinions without interference;\u201d second, to exercise the right to freedom of expression; third, sets principles, restricting that right \u201cfor the respect of the rights [\u2026] of others\u201d and \u201cfor the protection of national security or of public order.\u201d<\/div>\n
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These restrictions are defined quite broadly. But for them to be interpreted neither arbitrarily, nor extensively, the world\u2019s leading experts \u2013 the United Nations Special Rapporteur of the Right to Freedom of Opinion and Expression, the OSCE Representative on Freedom of the Media and the Organization of American States\u2019 (OAS) Special Rapporteur on Freedom of Expression \u2013 have issued a number of documents, which explain the limits of restrictions on freedom of expression.<\/p>\n

In particular, the Joint Declaration of the Representatives of Intergovernmental Bodies to Protect Free Media and Expression states, \u201cCriminal defamation is not a justifiable restriction on freedom of expression; all criminal defamation laws should be abolished and replaced, where necessary, with appropriate civil defamation laws.\u201d<\/p>\n

The UN\u00a0Special Rapporteur\u00a0on Freedom of Opinion and Expression\u00a0in his 2008 Report emphasized that, \u201cthe subjective character of many defamation laws, their overly broad scope, and their application within criminal law have turned them into powerful mechanisms to stifle investigative journalism and silent criticism.\u201d<\/p>\n

General Comment No. 34, issued by the UN Human Rights Committee in 2011, (Kazakhstan has been appointed to that Committee in 2013) states, \u201cthe \u00a0Committee \u00a0expresses \u00a0concern \u00a0regarding \u00a0laws \u00a0on such matters as, lese majesty,\u00a0desacato<\/i>,\u00a0disrespect for authority,\u00a0disrespect for flags and symbols, \u00a0defamation \u00a0of \u00a0the \u00a0head \u00a0of \u00a0state\u00a0and \u00a0the \u00a0protection \u00a0of \u00a0the \u00a0honuor \u00a0of \u00a0public officials,\u00a0and laws \u00a0should not provide for more severe penalties solely on the basis of the\u00a0identity of \u00a0the \u00a0person \u00a0that \u00a0may \u00a0have \u00a0been \u00a0impugned.\u201d<\/p>\n

While the drafters of the\u00a0new Criminal Code\u00a0are familiar with Article 19 of the\u00a0International Covenant on Civil and Political Rights, they seem\u00a0not\u00a0to be aware of the international standards of restrictions\u00a0on\u00a0freedom of speech,\u00a0set by\u00a0the third provision of the Covenant. This may have resulted in excessive restrictions,\u00a0introduced\u00a0in the draft of the Criminal Code.<\/p>\n

When the Criminal Code was in the process of drafting,\u00a0our coalition \u201c20 BAP\u201d,\u00a0[1]<\/a>\u00a0consisting of 12 NGOs, sent to the General Prosecutor\u2019s Office its suggestions substantiating arguments for decriminalization of defamation. We received a response, signed by the Interdepartmental Working Group, stating, \u201cIn our opinion, the decriminalization of\u00a0libel and slander\u00a0will not promote freedom of expression but increase malicious\u00a0attacks on\u00a0citizens\u2019 honor and dignity. This does not comply with the provision of the\u00a0International Covenant on Civil and Political Rights\u00a0to respect the rights and reputations of others\u00a0while\u00a0exercising the right to freedom of expression.\u201d<\/p>\n

I have already mentioned an issue of the misinterpretation of the third provision of Article 19. As for \u201cmalicious attacks,\u201d according to the Legal Statistics and Special Accounts Committee of the General Prosecutor\u2018s Office, in Kazakhstan, from 2010 to June 2013, a total of 1,480 defamation cases were terminated, including\u00a0760\u00a0cases, which\u00a0were settled out of court. According to Adil Soz Foundation\u2019s data, between 2001 and 2013, 65 defamation lawsuits against journalists were taken to court. In 16 instances, the court found the defendant guilty, resulting in the imprisonment of three. Whether these are socially dangerous acts per se is yet a question to ponder. Furthermore, I believe, it is crucial to decide if it is rational to overload criminal courts with hundreds of domestic quarrels.<\/p>\n

Lastly, one of the decisive arguments for retaining criminal liability for defamation the drafters cite a legal practice, enacted in the European Union.\u00a0Recently,\u00a0Mr.\u00a0Iogan Merkel, [First Deputy Prosecutor General], again,\u00a0stated\u00a0that 27 E.U. countries still maintain criminal liability for defamation. \u2018When the EU countries first abolish [it], we will see what it entails,\u2019 he said. In the meantime, he overlooks the fact that Germany, for instance, has not prosecuted anyone with criminal defamation in over 50 years. These countries fall under the jurisdiction of the European Court of Human Rights, which is fundamentally opposed to criminal defamation.\u00a0 And Russia, though, mentioned as having re-introduced criminal defamation, in fact, has removed imprisonment as a form of punishment.<\/p>\n

No one wants\u00a0to be defamed. Personal reputation is at highly valuable. Public officials fall under a greater risk of unsubstantiated accusations. Our civil statutes, however, provide ample possibilities to protect individuals\u2019 honor and dignity. Furthermore, it is crucial to remember that the 1946 UN General Assembly resolution No. 59 (I) states, \u201cFreedom of information is [\u2026] the touchstone of all the freedoms.\u201d<\/p>\n

I hope that parliamentarians will provide a fair assessment of the drafters\u2019 competencies in the area of freedom of expression and will take into account recommendations of the civil society.<\/p>\n

Tamara Kaleyeva<\/i><\/b>,<\/p>\n

President of Adil Soz, International Foundation for Protection of Freedom of Speech<\/p>\n

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[1]<\/a>\u00a0The Coalition borrows its name from Article 20 of the Constitution, which promotes freedom of expression<\/p>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n