Zanoza case as a test of Kyrgyzstan – the island of freedom of speech in Central Asia

Guest blog by the Media Policy Institute (MPI)

In terms of freedom of expression, Kyrgyzstan differs noticeably from its neighbors in Central Asia. In contrast to the extremely presidential autocracies of other Central Asian republics, the Kyrgyz Republic is unique in the importance that ethnic and tribal clan allegiances play in the parliamentary system.

The 2017 presidential election strengthened democratic institutions by paving the way for an orderly transfer of power from one elected president to another. The election was competitive, as voters had a wide choice and candidates could, in general, campaign freely, although there remains concern around misuse of public resources, pressure on voters, and vote-buying. While self-censorship and limited editorial coverage of the campaign signaled deficiencies in media freedom, the televised debates contributed to greater pluralism.

One series of events in 2017, following a plane crash, highlighted two different issues around press freedom in the Kyrgyz Republic: firstly that that the government uses administrative resources against the media, exerting pressure on the courts and doling out disproportionate penalties; and secondly that the Kyrgyz media has sometimes forgotten to perform a crucial function: checking information. This article will explain why, at MPI, our work must continue to protect the rights of journalists, amend the legislation, and also improve the quality of journalism.

Background: the Bishkek plane crash

On 16 January 2017 a cargo plane crashed into a village, killing 39 people near the capital city Biskek. The plane destroyed more than half of the village, and the dead included all four crew members and 35 villagers, including 13 children. The tragedy shocked the whole country and a national state of mourning was declared. The Boeing 747-400F was about a kilometer away from where it was supposed to land at Manas International Airport.

It was not immediately clear what had caused the crash, but it became evident that the cargo plane, though it had flown that route dozens of times the year before, may not have had the commercial rights to load or unload goods at Manas airport.

In March 2017, two lawyers working for the opposition party held a press conference where they claimed that the cargo belonged to the serving President of the Republic, Almazbek Atambayev. The lawyers, Taalaigul Toktakunova and Kanatbek Aziz, showed a document which appeared to be a report from Turkish special services. The document referred to Atambayev’s cargo being found at the crash site, as well as international mafia involvement.

Journalists from both Azattyk and Zanoza believed the sources they had spoken to and did not check or verify the document. They published articles repeating the damaging claims uncritically in their outlets. The press office of the President refuted the news the very same day and the Ambassador to Turkey also refuted the claims.

The General Prosecutor filed lawsuits against Zanoza, in connection with other publications, over the false claims published. The case, in defence of the president’s honor and dignity, demanded that the media outlet pay over one million soms (USD 14,400) in moral compensation.

The General Prosecutor also filed a lawsuit, in defence of the president’s honor and dignity, demanding that the media outlet pay over one million soms in moral compesation. The court ruled in the president’s favour and awarded damages of fifteen million soms (USD 215,000) to be paid by Zanoza.

Freedom of speech and equal access to justice are not for everyone

The Constitution of the Kyrgyz Republic guarantees everyone equal access to justice. However, the proceedings against Zanoza showed a complete disregard for the constitutional right to a fair trial. The media lost the case on all counts, while the state – represented by the courts – collected disproportionately high fines for infringing the reputation of a (by then former) president. We hold that the ruling demonstrated a clear preference for whose rights the legal system considered the most important and worthy of protection.

To achieve justice and address the concerning outcome of the lawsuit, MPI filed a complaint with the UN Human Rights Committee. Our complaint argued that the lawsuit violated international human rights law, and stressed the importance of not allowing these violations to be repeated.

Mediation

Despite the fact that the court had made all of its decisions on the Zanoza case, our organization and the Internews office in Kyrgyzstan have continued our attempts to reconcile both parties. We at MPI tried to convince the plaintiff that the courts’ decisions were unjust and that the measures taken were disproportionate responses to mistakes the journalists made in good faith. As a result, a year after the lawsuits began (and after the court’s decision had begun to be executed) ex-president Atambayev withdrew the financial part of his claims against the journalists.

In addition, as the case centred around journalists repeating untrue claims, both MPI and Internews ran training in editorial offices throughout 2017. The training helped journalists to better verify the authenticity of the messages and information that news outlets publish – including statements from politicians and other public figures. In our opinion, a positive outcome from the crisis is that it has drawn both the media’s and society’s attention to the importance of verifying information.

In a way, the Zanoza case has helped to revitalise the entire media community and the NGO sector in Kyrgyzstan. Most importantly, it led to a discussion about the quality of journalists’ work and helped address some negative stereotypes about the media which had led to people not fully appreciating the importance of freedom of speech.

Dura lex, sed lex – ‘the law is harsh but it is the law’

It should be noted that the legal claims were only possible because of the Kyrgyz Republic law ‘On guarantees of the activities of the President of the Kyrgyz Republic’.[1] This law “guarantees for the President of the Kyrgyz Republic, the former President of the Kyrgyz Republic and their family members, the forms and methods of protecting their honor and dignity” and formed the basis of the prosecution’s case.

The laws have been criticised by human rights NGOs for being incompatible with the right to freedom of expression. We hold that having laws especially to protect the honor of the president, former presidents, and their families, does not comply with the constitutional principles of the citizens’ equality before the law and the court. The Zanoza trials demonstrated that the General Prosecutor’s additional role, in these cases, as a personal lawyer of the president leads to a double pressure on the courts and affects the right to a fair trial. While the president has the right to defend his good name, he should be protected in a civil court without any special privileges.

However, the law is harsh, but it is the law. This means that without changes to the laws, the risk of more similar lawsuits against journalists continues. That is why, in order to address the domestic remedies available for violations of these laws, MPI appealed to the Constitutional Chamber, which has the authority to decide whether laws written especially to defend presidential honour are contrary to the Kyrgyzstan’s Basic Law of the country.

In October this year the Constitutional Chamber made a decision which took some of MPI’s arguments into account. While the decision did not take on our arguments that it is incompatible with the constitution for the General Prosecutor to function as a personal lawyer for the President, there was some progress. The decision means the General Prosecutor must now obtain the consent of the President before filing lawsuits on the President’s behalf, which helps draw some distinction between the roles.

By continuing to work with the media, the courts and the government, MPI helps to improve media freedom and increase the quality of journalism in Kyrgyzstan.

MLDI has been working with MPI since 2010 to provide legal defence to journalists, bloggers and independent media in Kyrgyzstan.

[1] Article 4, On Guarantees of the Activities of the President of the Kyrgyz Republic http://cbd.minjust.gov.kg/act/view/ru-ru/1278

 

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