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O 110732Z MAR 09
FM AMEMBASSY ASTANA
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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 
 
¶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