Kazakhstan: opposition journalist lost court at lawsuit filed by former mayor of Almaty
The District court No. 2 of Auezov district of Almaty ruled to satisfy the claim of the former mayor of Almaty Bauyrzhan Baybek against the opposition journalist and politician Zhanbolat Mamay and his wife Inga Imanbay for the protection of honor, dignity and business reputation.
The former mayor of Almaty, and now the first deputy chairman of the party “Nur Otan”, Bauyrzhan Baybek, in early May, filed a lawsuit against the opposition journalist, head of the unregistered opposition Democratic party Zhanbolat Mamay and his wife, journalist of the Kazakhstan International Bureau for Human Rights (KIBHR) Inga Imanbay. The reason for going to court was an investigation film entitled “Bauyrzhan Baybek: the corrupt business empire of the son of Nazarbayev’s classmate”, which Mamay filmed in the style of Navalny and posted it on YouTube.
In this film, Mamay and his team talked about how the former mayor of Almaty has created a huge business empire and became the owner of business centers and construction companies. In addition, the opposition politician accused the party functionary of appropriating state-owned land. The film was posted on April 13 and has been viewed by over 53,000 users to date.
The lawsuit was considered by the judge of Auezov District court No. 2 for civil cases Raikhan Sartaeva.
On May 19, judge Sartaeva, in preparation for the trial, instructs the experts of the Institute of Forensic Examination in the city of Almaty under the Ministry of Justice of the Republic of Kazakhstan to conduct a comprehensive forensic psychological and philological examination of this case.
According to the court’s ruling, the experts had to watch four videos posted by Mamay on the Democratic Kazakhstan YouTube channel and answer the following questions:
Is there a negative assessment of Bauyrzhan Baybek’s personality in the video materials? Is this assessment expressed in an indecent form? Are the statements about Baybek offensive? What is the possibility of psychological impact on the mass consciousness, state, opinion, judgment, behavior of people? Is the content of these films capable of forming negative opinion about the personality and activities of Baybek? Does this information discredit the honor, dignity and business reputation of the plaintiff?
“What is the meaning of the following phrases in the context of the publication? ‘Baybek created a mafia-corruption structure in Almaty, working as the mayor of the city… He sold the last surviving apple orchard within the city limits for the construction of Esentaicity. For this he received a corruption gift, luxury apartments in this residential complex… Especially, it’s necessary to tell about Baybek’s shady deals in the field of transport. So, under him, a big shady deal was launched with the transfer of the railway stations Almaty-1, Almaty-2 to the balance of the city. Despite the fact that the thief and corrupt official Baybek has been working in the civil service all his life; a major official-embezzler; the head of the mafia clan; a dull person… Being the mayor, he committed many frauds with land and state property in Almaty… We can talk about Baybek’s theft for hours… He is distinguished by particular cruelty and rancor…” these quotes from the film were also asked to be assessed by experts.
On June 14, Erlan Kaliev, representing the interests of Zhanbolat Mamay, filed an application for the disqualification of judge Raikhan Sartaeva. The reason for this was the fear that judge Sartaeva is interested in a favorable outcome for Baybek. However, Daulet Arkinov, the chairman of Auezov District court No. 2, rejected this application.
It should be noted that other petitions on the part of the defendant at subsequent court hearings were rejected, including that the court should be held offline, and the plaintiff Bauyrzhan Baybek should be present at the court sessions in person. In addition, the defendants asked the court to ensure the presence of relatives of the former mayor of Almaty at the hearings, who, in their opinion, are participants and witnesses of Baybek’s corruption schemes.
Having received several refusals on the petitions, Erlan Kaliev challenged judge Sartaeva. However, the chairman of the court, Daulet Arkinov, didn’t satisfy the challenge. Judge Sartaeva offered the parties to settle the dispute peacefully, but Zhanbolat Mamay and Inga Imanbay refused to conclude an amicable agreement.
“The subject of the lawsuit is not that Zhanbolat Mamay accused or disseminated information discrediting the honor and dignity of Baybek in everyday life, or under any other personal circumstances, but in recognizing the information disseminated by my client about the alleged commission of corruption crime that inflicted colossal damage to the state on an especially large scale – to recognize it as ineffective. Taking into account that the damage was caused to the state, and not to my client personally, I think that there can be no question of any conciliatory procedures,” Erlan Kaliev commented on this refusal.
On June 15, judge Sartaeva made a decision on the case. She decided to satisfy the claim of the former mayor of Almaty in full.
According to the court decision, Zhanbolat Mamay and Inga Imanbay are obliged to completely remove video materials on YouTube channel that are defaming the honor, dignity and business reputation of the plaintiff within 10 calendar days, as well as publish on the Democratic Kazakhstan channel a refutation of the statements made by the journalist that “Baybek created a mafia-corruption structure”, and “received a corruption gift in the form of luxury apartments in Esentaicity residential complex”, etc.
In addition, according to the court’s decision, Mamay and Imanbay must pay court costs in the amount of $ 2,000 and the costs of a comprehensive forensic psychological and philological expertise in the amount of $ 175.
“Journalistic investigation presupposes “the need to establish and make public the true causes of certain events, processes, situations, based on the collection of reliable evidence and their publication. The result of the publication of a journalistic investigation can only be facts confirmed by reliable evidence, and a journalist has no right to make statements that are offensive in nature, denigrating the honor, dignity and business reputation of the heroes of the publication. The court checked all the statements made by the defendant for their correspondence to reality. Based on the evidence presented by the parties, the court has given an appropriate legal assessment to each fact in the statements of the defendant, as a result of which it has been reliably established that these facts don’t correspond to reality,” judge Sartaeva commented on her decision.
“We disagree with the decision and believe that the rights of the defense were infringed upon,” lawyer Galym Nurpeisov commented on the court decision at a press conference held after the trial.
“Our country will be ruined by the party “Nur Otan” and corruption,” Erlan Kaliev said at the press conference. “We are up to the triumph of democracy, like walking to the moon. But at least some laws should work in our country! My principal publicly conducted an investigation and publicly published data on the possible participation of Bauyrzhan Baybek in the theft of a huge amount of state money. First of all, the Anti-Corruption Agency should have responded to this. And if it had conducted an investigation that wouldn’t have confirmed these facts, then Bauyrzhan Baybek, on the basis of this conclusion, would have had every right to apply to the court for the protection of his honor and dignity. However, the statement of the plaintiff, that he wasn’t guilty, was enough for the court. He announced that he had nothing to do with it and demanded to punish the defendant. And the court followed his tastes.”
“We don’t agree with the court’s decision and will appeal it. We’ll go to the Supreme court. We don’t intend to comply with the decision of the court of first instance!” Zhanbolat Mamay said after the press conference.
