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Shokay: the story continues and the accomplices of fascism are protected by the name of the Republic of Kazakhstan

We already reported that the Ust-Kamenogorsk city court of the East Kazakhstan area passed the judgment to dismiss the claim of the director of the documentary film “By the roads of Mustafa Shokay” Kasymkhan Begmanov to the journalists of the Flash newspaper Denis Danilevsky and Sergey Mikheyev who stated the point of view on the personality and actions of Mustafa Shokay on newspaper pages.

However, the story didn't end … The further developments were commented by Denis Danilevsky at our request:

- On July 12, the judge of the East Kazakhstan appeal board of the regional court Smagulov returned a verdict from the third attempt: to cancel the decision of Ust-Kamenogorsk city court of May 18, 2012 and to recognize the data on Shokay, published in our articles, not representing the facts(!), to publish a denial, to pay to the director of the film “By the roads of Mustafa Shokay” Kasymkhan Begmanov 100 thousand tenges (about 20 thousand roubles) as compensation of moral harm and 100 thousand tenges – the court costs (service of the lawyer).

The decision is unprecedented, most likely, accepted under administrative pressure. It turns out that the accomplices of fascism are protected by the name of the Republic of Kazakhstan and the journalists stating the assessment to such accomplices are pursued through such judgments! As they say, the masks are dumped. … It is necessary to prove - why the decision of the first instance is cancelled and why the data on the historical character are recognized inappropriate to reality and, moreover, doing the moral harm to the author of the film! We understand that reach nothing, but we will submit to cassation instance.

Let as much as possible so-called judges will get dirty in this case. Time will state an assessment to everyone. It is necessary to extend the information on this process more widely as it possible, as Kazakhstan has too positive image. Real picture is much less attractive.

*** 2a-1883/2012

DECISION

The appeal judicial board of the East Kazakhstan regional court as a part of the presiding judge K.Sh. Smagulov, with participation of the representatives of the claimant G.G. Hvan, M.O. Salimova, the representative of the respondent of LLP 3X A.N. Bozhkov, the respondent D.G. Danilevsky considered in a public court session on July 12, 2012 in the city of Ust Kamenogorsk the civil case according to Kasymkhan Seytkhanovich Begmanov's claim to LLP 3X, to Denis Georgiyevich Danilevsky, Sergey Nikolaevich Mikheyev about the honor and dignity protection, compensation of the moral harm, arrived according to the appeal complaint of the representative of the claimant to the decision of Ust-Kamenogorsk city court of May 18, 2012, HAS ESTABLISHED:

K.S. Begmanov appealed to court with the claim to respondents about honor and dignity protection, motivating that D.G. Danilevsky and S.N. Mikheyev published the articles in the FLASH newspaper which contain the data discrediting the honor and dignity of the author of the documentary film “By the roads of Mustafa Shokay” K.Begmanov.

In communication with what he asked the court to recognize data stated in articles “National democrats against the Customs Union” and “As black becomes white” as inappropriate to reality and to oblige FLASH newspaper editorial office to publish a denial and also to collect from respondents the compensation of moral harm in the sum of 5 000 000 tenges in equal shares. It is decided by judgment: to refuse in satisfaction of the claim of Kasymkhan Seytkhanovich Begmanov to LLP 3X, to Denis Georgiyevich Danilevsky, Sergey Nikolaevich Mikheyev about the honor and dignity protection, compensation of moral harm.

To exact from Kasymkhan Seytkhanovich Begmanov the expenses on payment of the help of the representative in the sum of 20 000 (twenty thousand) tenges in favor of LLP 3X. In the appeal complaint the representative of the claimant asks to cancel a judgment and to satisfy the claim in full.

Having heard the speeches of representatives of the claimant G.G. Hvan, M.O. Salimova, supported the arguments of the appeal complaint, objection of the representative of respondents of LLP 3X A.N. Bozhkov, respondent D.G. Danilevsky, having investigated the case materials, the board considers that the judgment is subject to cancellation with pronouncement of the new decision on the following bases.

From materials of the case it is seen that in July, 2011 the presentation of the documentary film “By the roads of Mustafa Shokay” was carried out in akimat of Ust -Kamenogorsk at which there were the representatives of mass media of the city, including respondents in the person of journalist S. Mikheyev.

Subsequently, on July 26, 2011 and August 6, 2011, the information on the film, discrediting the honor and dignity of the claimant was published in the newspaper “Flash!”.

The article published in the newspaper of July 26, 2011 is called “National democrats against the Customs Union”, written by journalist Danilevsky, contain the discrediting information in the following statements: “One of these days the presentation of the documentary film “By the roads of Mustafa Shokay” took place in Ust -Kamenogorsk, narrating about the figure who cooperated with the Hitlerites in the days of war, created the Turkestan legion from the captured Red Army men. Mustafa Shokay is, in fact, the Kazakh Vlasov”.” … And a month later, by a state order it is already written about the fascist henchman standing on other party of an entrenchment”. The article published in the newspaper of August 6, 2011, “As black becomes white”, is written by journalist S. Mikheyev contains the data discrediting the honor and dignity of the author of the film, namely M. Shokay: “unaccomplished governor-gauleiter of Kazakhstan and Central Asia”. “And there was no word about notorious “Turkestan legion”, one of ideological heads of which was Mustafa Shokay with a convincing evidence of this fact”. The board considers that statements containing in articles to the hero of the documentary film of K. Begmanov, have the negative character, doesn't represent the facts, that wasn't denied by respondents during judicial proceedings.

According to item 1 of the Standard resolution of the Supreme Court of the Republic of Kazakhstan No. 6 of December 18, 1992 “About application of the legislation on honor and dignity protection or business reputation of physical and legal entities in jurisprudence” discrediting the honor and dignity of the citizen or the organization in public opinion of certain citizens from the point of view of observance of laws, moral principles of society. Honor is a public assessment of the person, a measure of his spiritual and social qualities. Advantage is the internal self-image the person of own qualities, abilities, the public value. Business reputation is a steady positive assessment of business (production, professional) dignity of the person by the public opinion. The fact of distribution of the discrediting information proves to be true by the publication of articles in mass media newspaper “Flash!” and also placement of the text of articles on a site www.flashpres.kz. According to point 1 of article 17 of the Constitution of the Republic of Kazakhstan, the dignity of the person is inviolable.

According to points 1 and 2 of article 18 of the Constitution, everyone has the right to inviolability of private life, personal and family secret, protection of the honor and advantage. According to item 1 of article 143 of the Civil Code of the Republic of Kazakhstan, the proof duty that the spread information represents the facts, is assigned to the respondent. The claimant is obliged to prove only the fact of distribution of data discrediting him by the person to whom the claim is made, thus he has the right to produce also the evidence of discrepancy of reality of the data discrediting his honor and advantage. Arguments of respondents that expressed by them opinion of cooperation M. Shokay in days of the Second World War with Hitlerite Germany doesn't mention the honor and dignity of K. Begmanov, it can’t be recognized as the reasonable. From sense of the challenged offers containing in articles “National democrats against the Customs Union” and “As black becomes white” follows that the film “By the roads of M. Shokay” is devoted to the activity of the politician who cooperated with fascists in the days of war. This statement forms at readers the negative attitude not only to the hero of the film, but also to the author of the film as, having shot the film about the ally of Hitlerite Germany, the claimant thereby broke the principles of the morals existing in society and state condemning of idea of fascism.

The spread information has discrediting character as contain information not representing the facts which belittles the honor, advantage and business reputation of the claimant in public opinion. The party of respondents didn’t present to the court the proofs of that the spread information represents the facts. Proceeding from stated, the claim requirement about compensation to the claimant of the caused moral harm is subject to satisfaction. At determination of its size, the court considers the degree and an assessment of the moral sufferings by the claimant tested by him as a result of violation of the personal non-property right, extent of distribution of doubtful data, their content and character.

Having observing a justice and sufficiency principle, the board considers necessary to reduce the amount of monetary compensation of moral harm to 100 000 tenges, having exacted it from respondents in equal shares. According to articles 110,111 of the Civil Procedure Code of the Republic of Kazakhstan, the court awards compensation to the party in favor of which the decision took place, by other party all court costs incurred in case at a rate of the satisfied part of the claim and also the expenses on payment of the help of the representative participating in process at a rate of the expenses suffered by the party.
According to monetary requirements these expenses shouldn't exceed ten percent from the satisfied part of the claim. In compliance of item 14 of the standard resolution of the Supreme Court of the Republic of Kazakhstan No. 9 of December 25, 2006 “About application of the legislation on court costs on civil cases by the courts of the Republic of Kazakhstan” the reimbursement on payment of the help of the representative participating in process is made according to requirements of article 111 of the Civil Procedure Code and documentary confirmed sum of expenses (the payment order, the receipt) on payment of the help of the representative participating in process. Expenses on fee of the representative are subject to satisfaction at a rate of 100 000 tenges that proves by the receipt and the contract presented by the representative of the claimant and these expenses are subject to exacting from the respondent.

Being guided by article 358 part 3 of the Civil Procedure Code of the Republic of Kazakhstan, the judge of appeal judicial board HAS RESOLVED: to cancel the decision of Ust-Kamenogorsk city court of May 18, 2012 and pass the new decision. To satisfy partially the appeal complaint of the representative of the claimant G.G. Hvan. To recognize the data containing in D. Danilevsky's article “National democrats against the Customs Union” in the FLASH newspaper of June 26, 2011 as inappropriate to reality and discrediting the honor and dignity of K.S.Begmanov. “One of these days the presentation of the documentary film “By the roads of Mustafa Shokay” took place in Ust -Kamenogorsk, narrating about the figure who cooperated with the Hitlerites in the days of war, created the Turkestan legion from the captured Red Army men. Mustafa Shokay is, in fact, the Kazakh Vlasov”.” … And a month later, by a state order it is already written about the fascist henchman standing on other party of an entrenchment”.

- in the article of S.N. Mikheyev “As black becomes white” where the author specified the following: «for a cause of death “unaccomplished governor-gauleiter of Kazakhstan and Central Asia” (it is about Mustafa Shokay). “And there was no word about notorious “Turkestan legion”, one of ideological heads of which was Mustafa Shokay with a convincing evidence of this fact”. To oblige the editorial staff of FLASH newspaper to publish a denial on the specified data. To exact from the respondents Denis Georgiyevich Danilevsky and Sergey Nikolaevich Mikheyev the compensation of moral harm 100 000 (hundred thousand) tenges and also court costs of case – state duty return in the sum 1618 (one thousand six hundred eighteen) tenges, fee of the representative in the sum 100 000 (hundred thousand) tenges in equal shares in favor of Kasymkhan Seytkhanovich Begmanov. The decision can be appealed or protested in cassation judicial board of the East Kazakhstan regional court within 15 days from the moment of receiving. Judge K.Sh. Smagulov.

Copy is true
Judge K. Sh. Smagulov

Viewed : 1562   Commented: 1

Author: Vladimir Kuzmenkin

Publication date : 10 August 2012 14:42

Source: The world and we

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