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Judicial litigation


  Our court litigations are beginning with publishing on 24th of February in 1999 in the newspaper “Evrika”, Aktobe, the article of the deputies of city and regional maslikhats V.Skuridina and B.Mirzabayeva. “Does paper endure all?”

  We consider this period of 5 years, which was with first publication about the “Diapazon”, useful in practical learning court system of our country, system of relations between mass media and society, new relations in society with using court system. This article includes only our personal opinion about discussing questions. Some materials from court decisions, which we mention here, author can give additionally. Several questions, which we had decided by court way, can give new application, which didn’t use earlier at court civil and civil-process codes of the Republic of Kazakhstan.

  1. On 29th of May in 1999 is appeared claiming declaring of main editor of the newspaper “Diapazone” Gleb Chugunov on 11 paged about protection of honor, dignity and business reputation to V.Skuridin. In article we related about his drunkenness (to our mind it was the reason that he went away from newspaper, but not by him will), unworthy conduct at New Years Party and, as consequence, “concert” in drunken, expressed our dissatisfaction by position of the newspaper about some questions. Chugunov valued his honor in 10 million tenge, that time it was more than 100 thousands dollars of the USA.

  For the first time in history of the Kazakhstan, main editor of newspaper made such claim to reader. The aim is understandable – to kill insulter economical.

  Looking through the claim by different judges lasted till 6th of March in 2000. During this time G.Chugunov moved to Russia. He takes citizenship of the Russian Federation on 30th of April in 1998 with help of the ambassador of the Russian Federation in the Republic of Kazakhstan. Then we for the first time in court practice of Kazakhstan use p. 2-9 clauses 416 of the Civil-process Code of the Republic of Kazakhstan, and as claimer hasn’t any address in the Kazakhstan, the judge R.Kustanova took decision not to touch his affair.

  2. That time courts with participation of the “Diapazone” were very often. It was very interesting even to be spectator. There it was possible to study strategy and tactics of the rival. On one of these processes, there was discussion about closing the newspaper, journalists of the newspaper photographed me and photo was published near with photo of judge, prosecutor and expert (later the deputy of the Mazhilis A.Aitali). It looked that I was participant of this process. I was shocked by unconscious of the newspaper. As answer at first in practice I used the clause 145 of the Civil Code of the Republic of Kazakhstan “The right for own represent” – nobody has right to use somebody’s photo without his agreement. The mechanism of application of this clause wasn’t that time and so is no nowadays. I connected it with the clause 143 of the Civil Code of the Republic of Kazakhstan “The protection of honor and dignity”.

  The judge A.Utegenov took claim to consideration and on 28th of September in 1999 recognized actions of the newspaper not right. He ordered to the newspaper to apologize in front of public and to pay 5 thousand tenge as moral harm. The “Diapazone” is cynical treated to the decision of the court and published once again photos with some caustic comments about judge. Then under pressure of court executors does apologized, and paid money, but published my photo for the 3rd time.

  The judge B.Nabatov took new claim to consideration and on 15th of February in 2000 recognized again that the actions of the newspaper are not right. He ordered to the editorial office apologize in front of public again, and pay 6 thousands tenge as moral harm.

  The law acted, but in blank. Eleven thousands tenge couldn’t stop the editorial office. However suddenly I understood that by accident I found extremely delicate point in politic of mass media – which needs in them without photo, especially “fried”. The “Diapazone” was supported fund of protection of freedom of the word “Just word (Adil soz)”, son of the leader of “Diapazone” complained on me at one of seminars in USA and found their sympathy. Nobody remember human’s rights. It looks like that our deputies sometimes be weak, when in one type of law about mass media they offered to publish photos of those people who take public post without their agreement. Those deputies, for example, cannot present claims to mass media about protection rights for own photo.

  3. In autumn in 1999, before elections into the maslikhat, the “Diapazone” advised me: “In this case it waned be better for him fill into court on the commission committee of health ministry OK&Z of the Republic of Kazakhstan as Tynybekov A.S., Kudaibergenova A.R., Tusupkalyev B.T., because they confirm in their “The reference about results of checking facts” on 13th December in 1997, and they confirmed opposition: “After selling building of therapy the city health keeping was without neurological beds. Besides, in spite of that in building, which was sold, there were X-rayed, physiotherapy and other departments of the city hospital number 1 on ground and first floors, administration of hospital had to pay lease to hospital “PHOENIX”. If Mr. Candidate doesn’t know this document, the editorial office will divide the copy with great pleasure”.

  I did it because I consider this information is not true to reality. In time I didn’t pay attention to this phrase. From one side, it is not true, on the other hand I don’t subjugate to the committee of health in these questions. But as Chehov has said, if a gun hands on the wall, it will shoot. And it’s shooting in full swing of Election Company, after two years. Go to the law directly with the committee of health is very difficult, because it is situated in Astana. Then I elected as defendant the member of the committee Tusupkalyev B.T., who lived in Aktobe and even couldn’t be author of that phrase. But it gave possibility for court in Aktobe for elucidates the authenticity of materials of reference. The judge Kanatova L.S. looking through these affairs found as third person from the side of defendant the Agency about health affairs of the Republic of Kazakhstan, which that time was right successor of the committee of health the Ministry of OK&Z the Republic of Kazakhstan. Then looking through the affair on 15th of August in 2000 she recognized lines of reference “not true to reality” and ordered to the Agency about health affairs of the Republic of Kazakhstan to substitute the reference. This decision gave possibility not only to protect honor of the organization, but it changed the revision about new opened circumstances, the claim of the LTD “Rifma” by press-conference during before electing company. I won elections and became deputy for the third time. And, how it doesn’t look strange, but the “Diapazone” helped me in it.

  To the middle of May in 2000, speaking in sport language, general score was 6 to 3 to my profit (by apologizing 2 to 1). However one case that I lost on 5th of May in 2000 to constituter of the “Diapazone” – the LTD “Rifma”, where according to the decision of the judge Zh.Mambetova I had to pay 20 thousands tenge as moral harm for the article “Does paper endure all?” had very unusual consequence.

  Kakisheva Gulsim Shamilyevna 4. On 20th of May in 2000 the LTD “Rifma” is bearer me the claim about recovery from me, according to clause 111 CPC of the Republic of Kazakhstan, 120 thousands tenge for expense of paying help of representative. For taking part in process, where moral harm install into 20 thousands tenge (and this is general sum in court practice for paying moral harm), the cost of service of the representative of the LTD “Rifma” Laykin S.V. are more large. According to money requiring although expenses must not be large than 10 percents from satisfaction part of claim. The plaintiff stood on that side, that the claim is not material, moral harm not money (however and in money?) and 10 percents are not limit. We (and that time the advocate Kakisheva Gulsim Shamilyevna join in process) made support on that the side hasn’t any expenditures yet, as at accountants steering of the LTD “Rifma” this sum was at calculation 333 “The depths of under reporting persons”. This is a distribution of money in dept, and the representative must be given an account of this money. However the judge Mambetova didn’t hear any arguments. On 29th of June she took decision about exacting from me 120 thousands tenge for the LTD “Rifma”.

  The precedent created, when by not court calculation (more often just with agreements of the representative) it is possible to substantiate any sum of recovery from lost rival. In this case it may be 700 thousands or 2 million tenge. According to opinion of our experts, in this combination teachers of the High School of rights “Adulet” took part. Our aim was full stop of this scenery. Such results we had quite several times with the “Diapazone”. But not only we, he had court with others.

  Working out of measures was held with taking part of high qualification specialists and scientist-lawyers of Aktobe. We directed complaint to the regional court, and on 15th of August it changed decision of the city court and directed affairs to another court.

  At war as at war. Later strategy became as very offensive. We asked ourselves question quite a lot of time – who can gave paying services of representative at court? It turned out that advocate and persons who has license for giving paying law services. The lawyer of the LTD “Rifma” wasn’t advocate and he hadn’t license for giving paying law services, not connected with advocate’s actions. And here simple combination appeared – all were free and that time the claim disappeared, there were no expenditures; or money came without license. As consequence – activity without license, money came back into the budget of the state. As we had copies of three agreements (two of them about affairs with the LTD “Evrika LTD”) and three warrants of expense according to them he took 390 thousands tenge, and the sum became large to “coarse size”. It would be perspective of criminal affair for illegal owning like activity without license.

  On 7th of September we directed our claim about confession of agreements for giving law services between the S.Laykin and the LTD “Rifma” illegal with requiring of coming backsides to the first condition. The public prosecutor office in Aktobe directed analogous claim. On 5th of October the judge I.Ahmadullin took the decision: the claim of the public prosecutor in Aktobe like state interest – satisfied; in the claim to the LTD “Rifma” to the V.Skuridin – refuse.

  I think that the LTD “Rifma” did a lot for obtaining changing of the decision of the judge I.Ahmadullin in the regional court. And the regional court took decision of Solomon: in claiming requiring of the public prosecutor take agreement illegal - refuse (perhaps, the plaintiff must be place of license). In the part of the claim to the Skuridin there was the decision of the judge I.Ahmadulin. If we couldn’t cause criminal affair, we protected our interests, took invaluable experience.

  5. The lawyer S.V.Laykin gave claim for the advocate G.K.Kakisheva about protecting his honor and dignity, and about exacting moral harm in size 120 thousands tenge. Her speech during last process “characterized his as greedy”. The judge Kanatova L.S. on 16th of January in 2001 refused in claim. To my mind, the nerves of Laykin just gave him up.

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