Freedom of speech the mass media (media) and the publicity of proceedings

Freedom of speech the mass media (media) and the publicity of proceedings

                                                                       Extraction from Regulatory Legal Acts

Information orientation booklet prepared for a wide circle of people and, above all, for journalists, on the one hand, to ensure journalists specializing in judicial topics, information on the legal and regulatory framework governing access to justice, and on the other hand to remind everyone about the warranty ensuring the principle of transparency in civil, criminal and administrative proceedings. Focuses on issues related to the fixation and mass media coverage of the progress of the trial. These data will allow reporters to observe legal restrictions and protect their professional rights in the courtroom, and most importantly, will contribute to mutual understanding between judges and journalists.

I. Extraction from the Constitution of the Republic of Kazakhstan

Article 18

1. Everyone shall have the right to inviolability of private life, personal or family secrets, protection of honor and dignity.

2. Everyone shall have the right to confidentiality of personal deposits and savings, correspondence, telephone conversations, postal, telegraph and other messages. Limitation of this right shall be permitted only in the cases and according to the procedure directly established by law.

3. State bodies, public associations, officials, and the mass media must provide every citizen with the possibility to obtain access to documents, decisions and other sources of information concerning his rights and interests.

Article 20

1. The freedom of speech and creative activities shall be guaranteed. Censorship shall be prohibited.

2. Everyone shall have the right to freely receive and disseminate information by any means not prohibited by law. The list of items constituting state secrets of the Republic of Kazakhstan shall be determined by law.

3. Propaganda of or agitation for the forcible change of the constitutional system, violation of the integrity of the Republic, undermining of state security, and advocating war, social, racial, national, religious, class and clannish superiority as well as the cult of cruelty and violence shall not be allowed.

II. Extraction from Civil Procedure Code of the Republic of Kazakhstan

Article 19. Transparency of legal proceeding

 1. Case proceedings in all courts and all judicial authorities shall be conducted openly.
     

2. A trial shall be conducted in closed judicial session in accordance with the law, including if it involves announcement of judgments containing state secrets, as well as if the court grants a plea of a case participant for the need to preserve confidentiality of adoption or preservation of personal, family, commercial or any other secret protected by law or information related to the intimate aspects of the citizens’ lives or any other circumstances preventing a public trial, as well as in the case stipulated by paragraph six of the Article 179 of this Code.
 

3. Personal correspondence and private telegraph messages of citizens may be read in open court only with consent of persons involved in these conversations and telegraph messages. Otherwise, personal correspondence and private telegraph messages of these individuals shall be read and examined in a closed judicial session. The aforementioned rules shall be applied also in the course of examination of photo- and film documents, audiotapes and videotapes as well as messages received through other technical devices containing private information.
 

4. If the trial is conducted in a closed judicial session, it will be attended by persons participating in the case and their representatives, as well as witnesses, experts, specialists and interpreters, if necessary.
 

5. A decision to conduct a trial in a closed judicial session shall be made by court by way of a reasoned ruling.
 

6. Citizens under sixteen years old shall not be admitted to a courtroom unless they are persons participating in the case or witnesses.
 

7. A trial in a closed judicial session shall be conducted in accordance with all rules of the civil procedure.
 

8. Persons participating in the case and citizens in presence in open court proceedings have the right to document the trial process either in writing or with use of audio recording from their seat in a courtroom. Any camera and photo camera recording, video recording, direct radio and TV broadcasting in the course of a trial shall be permitted upon approval of the court with taking into account opinions of persons participating in the case. These actions should not interfere with a regular process of the trial and may be time-limited by the court.

III. Extraction from Criminal Procedure Code of the Republic of Kazakhstan

Article 29. Publicity

 1. Consideration of criminal cases in any courts and in any court instances shall be

through an open procedure. The restriction of publicity of court procedures shall be allowed only

when this contradicts the interest of protecting state secrets. Closed judicial procedures aside

from that, shall be allowed on the basis of motivated resolution of the court in cases of crimes of

minors, in cases of sexual crimes and other cases for the purposes of preventing information

concerning intimate side of life of persons participating in those cases and also in the cases

when it is required by the interests of safety of the victim, witness or any other participants in a

case as well as their family members or close relatives. Also through a close type session

cases shall be considered by the court at a pre-trial stage of the court procedure, associated

with complaints related to acts and decisions of the bodies which exercise criminal prosecution.

2. Consideration of cases and complaints through close sessions shall be carried out in

compliance with all the rules as established by this Code.

3. A court sentence and resolutions adopted on a case in any event shall be proclaimed

publicly.

IV. Extraction from Administrative Offences Code of the Republic of Kazakhstan      

Article 24. Publicity of proceedings on administrative offences

1. The court, body the (officials) authorized to consider cases on administrative offences are engaged in the manufacture of these cases open.
 

2. In accordance with the law the close proceeding is conducted in respect of cases that contain information that is a state secret, as well as in meeting the court, body (official) authorized to consider cases on administrative offences, motions involved in the case of the person claiming the need to ensure the confidentiality of adoption, preservation of personal, family, business or other secret protected by law, information about intimate aspects of the lives of individuals or to other circumstances that prevent public hearing.
 

3. Personal correspondence and private individuals telegraph messages may be read with an open production only with the consent of persons between whom there were conversations and telegraphic communications. Otherwise, personal correspondence and private telegraph messages of these individuals were read and analyzed in the closed proceedings. These rules are applied in the study of photography and film documents, audio and video recordings that contain personal information.
 

4. Persons involved in the case, and individuals present at the open proceedings, have the right to record in writing or using audio production course with the space used in the room where production takes place. Cinema and photography, video, live radio and TV broadcasts in the production are allowed by the Court, a body (official) authorized to consider cases on administrative offences, considering the opinion of those involved in the case. These actions should not interfere with the normal course of production and may be limited in time.
    

V. Extraction from Law of the Republic of Kazakhstan “On Mass Media”     

Article 2. Freedom of speech, receipt and information dissemination

1.Freedom of speech, creative work, expression of one’s views and beliefs in printed or other form, receipt and dissemination of information in any legal way shall be guaranteed by the Constitution of the Republic of Kazakhstan.

Censorship shall be prohibited.

2. Government bodies, public associations, government officials and mass media shall be obliged to provide an opportunity for each citizen to become familiar with documents, decisions and information sources affecting his rights and interests.

3. Use of a mass medium for propaganda or agitation of forced change of constitution order, infringement of integrity of the Republic of Kazakhstan, detriment of national security; war, social, racial, national, religious, class or patrimonial superiority, cult of cruelty and violence, pornography and dissemination of data forming state secret of the Republic of Kazakhstan and other registered secrets shall be barred.

4. Do not use the media to commit administrative violations or criminal acts.

Article 19. Right to refutation

1.Citizen or legal entity shall have the right to demand refutation of data derogating his honor, dignity and business reputation in court, if the person that spread this information is not able to prove that information is true.

2. If data derogating honor, dignity and business reputation of citizen or legal entity is disseminated in mass media, it must be refuted in the same mass media free of charge.

If a document coming from an organization contains the mentioned data, such document shall be subject to replacement or recall with mandatory notification of addressees about non-compliance of the data contained in this document with reality.

3. Demand of a citizen or legal entity to publish refutation or responsibility in a mass medium shall be processed in court in event when a mass medium refused to make this publication or if it didn’t make this publication within one month and in event of its liquidation.

4. Citizen or legal entity, in relation to which data derogating his honor, dignity and business reputation was spread, shall have the right to demand compensation of losses and moral harm caused by initiator as well as refutation of such data.

Article 20. Rights of a journalist

Journalist shall have the right:

1) to accomplish research, request , receive and disseminate information;

2) to visit government agencies, organizations with all forms of ownership and to be received by their officials in relation to maintenance of their business responsibilities, be present at all events held by agency that accredited the journalist excluding events when a decision was made to hold a private event;

3) to make recordings including use of audiovisual equipment, cinema and photo shooting except events prohibited by legislative acts of the Republic of Kazakhstan;

4) to be allowed upon presentation of journalist’s credentials in the regions of natural disasters, at meetings and demonstrations and at events with other forms of expressing public, group and personal interests and protest;

5) to have access to documents and materials except their fragments containing data that is a state secret;

6) to check trustworthiness of received information;

7) to address specialists when checking received information materials;

8) to disseminate his/her messages and materials under his/her signature and conditional name (pseudonym);

9) to refuse to publish material under his/her signature if its contents after editing contradicts his/her personal beliefs;

10) to keep the secret of copyright and information sources except for events when these secrets are published at court’s demand.

Article 20. Duties of a Journalist

Journalist shall be obliged:

1) to implement the program of a mass medium activity, which he/she has contract relations with, in accordance with legislation of the Republic of Kazakhstan;

2) not to disseminate information that does not comply with reality;

3) to satisfy request of persons that granted information to mention their authorship;

4) to respect legal rights and interests of natural persons and legal entities;

5) to carry out other responsibilities laid upon him/her in accordance with legislation of the Republic of Kazakhstan.

Article 25. Grounds for responsibility for violating the legislation on mass media

1. Disseminating data derogating honor and dignity of a citizen or an organization (government agency, public, creative, scientific, religious or any other association of citizens and legal entities) that does not comply with reality and influencing the court by mass media shall entail responsibility provided in legislative acts of the Republic of Kazakhstan.

2. Responsibility for violation of legislation on mass media shall be taken by the guilty officials from the government agencies and other organization as well as the owner, distributor, editor-in-chief (editor) of a mass medium, authors of disseminated messages and materials.

2-1. An owner, chief editor (editor) of a mass medium bear responsibility, set by legislative acts of the Republic of Kazakhstan for dissemination of reports and materials, containing propaganda or agitation of forced modification of constitutional regime, crippling of the Republic of Kazakhstan, undermining security of the state, war, social, racial, national, religious, class and ancestral superiority, cult of cruelty, violence and pornography, independent from source of their receipt.

3. Hindering legal professional activity of a journalist shall entail responsibility established by legislation of the Republic of Kazakhstan.

Article 26. Cases of exemption from responsibility for dissemination of data that does not comply with reality

Editor-in-chief (editor) equally with a journalist shall not carry responsibility for dissemination of data that does not comply with reality in the mass media:

1) if official messages and documents contained this data;

2) if the data was received from advertisement and information agencies or press services at government agencies;

3) if the data is an exact quotation of official statements made by deputies from representative agencies, government officials, organizations and citizens;

4) if this data was in author’s speeches that were broadcast with no preliminary recording or in texts that are not subject to editing in accordance with the present Law;

VI. Extraction from the Code of Judicial Ethics

(Approved by the Resolution V Congress of Judges of the Republic of Kazakhstan from 18.11.2009)

Article 2

In their professional activities and outside service judge is obliged to observe the laws, the Code of Judicial Ethics, generally accepted standards of morality.

The judge must make a decision in accordance with the law and conscience.

Judge must be impartial. Public opinion, criticism of judges in the media should not affect the legality and validity of its decisions.

A judge shall not act until the court publicly express their opinion about his being, proof or unproven allegations, validity or invalidity of the application, as well as outside professional activities to question decisions of the courts, have entered into force, and to criticize the actions of their professional colleagues.

The judge must be polite, tolerant, considerate and respectful against trial participants. A judge should require similar conduct of all persons participating in the proceedings.

VII. Extraction from International Covenant on Civil and Political Rights

(New-York City, 16.12.1966, ratification by Law of the Republic of Kazakhstan of 28.11.2005)

Article 14.

1. All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgment rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.

 Article 17

1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

 2. Everyone has the right to the protection of the law against such interference or attacks.

 Article 19

1. Everyone shall have the right to hold opinion without interference.

 2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds regardless of frontiers, either orally, in writing or in print, in the form of art or through any other media of his choice.  3. The exercise of the rights provided for in paragraph 2 of this Article came with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others;

(b) For the protection of national security or of ordre public, or of public health or morals.

VIII. Extraction from Universal Declaration of Human Rights

 ( Adopted at the third session of the UN General Assembly 10.12.1948)

Article 10

Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.

Article 12

No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.

Article 19

Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

Article 29

1. Everyone has duties to the community in which alone the free and full development of his personality is possible.

2. In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.

3. These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations.

IХ.Extraction from Amendment to the Convention on access to information, public participation in decision-making and access to justice in environmental matters

(Århus, 25.06.1998, ratification by Law of the Republic of Kazakhstan of 23.10.2000)

Article 1

To promote the protection of the rights of every person of present and future generations to live in an environment adequate for their health and well-being, each Party shall guarantee the right of access to environmental information, public participation in decision-making and access to justice in matters relating to the environment, in accordance with the provisions of this Convention.      

See also other documents related to these legal questions posted on the website of the Supreme Court of the Republic of Kazakhstan and the Union of Judges of Kazakhstan:

·         Regulatory Decree of the Supreme Court of the Republic of Kazakhstan dated May 14, 1998 № 1 "On some issues of application of the legislation on the judiciary in the Republic of Kazakhstan."

·         Regulatory Decree of the Supreme Court of the Republic of Kazakhstan dated December 6, 2002 № 25 "On the principle of publicity of criminal proceedings."

·         Regulatory Decree of the Supreme Court of the Republic of Kazakhstan dated October 28, 2005 № 5 "On the principle of publicity of court proceedings in civil cases."

·         Regulatory Decree of the Supreme Court of 18 December 1992 № 6 "On the application of jurisprudence legislation on protection of honor, dignity and business reputation of individuals and legal entities."

·         Recommendations of the Central Council of the Union of Judges (approved by the Resolution of the Central Council of the Union of Judges of the Republic of Kazakhstan dated August 24, 2010 № 24).

·         The circular letter of the Supreme Court of the Republic of Kazakhstan dated November 7, 2000 № 10-9/1017.

Booklet is designed by the unit of the Central Council of the Union of Judges of the Republic of Kazakhstan, the press office of Akmola regional court, expert of the public association "Center of development of modern journalism" with the assistance of the U.S. Embassy in the Republic of Kazakhstan.

2012