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The court agreed with the history court!

The Ust-Kamenogorsk city court of the East Kazakhstan area passed the decision on the claim of the director of the documentary film “By the roads of Mustafa Shokay” Kasymkhan Begmanov to the journalists Denis Danilevsky and Sergey Mikheyev. Let's remind that they published the materials in the popular local newspaper Flash about the film in which stated the point of view on Mustafa Shokay's identity.

The verdict is returned. As Denis Danilevsky noted “the judgment is our complete victory”! Also it is very important and indicative fact!

We suggest you to familiarize with the text of the decision of Ust-Kamenogorsk city court.


No. 2-4142/2012

DECISION
BY THE NAME OF THE REPUBLIC OF KAZAKHSTAN


Ust-Kamenogorsk city court of the East Kazakhstan area as a part of the chairman of judge T.T. Kasimov, the secretary of the court session A.A. Kenzhebayeva with the participation of the representative of the claimant G.G. Khvan by warrant, the representative of the respondent of LLP 3X A.N. Bozhkov by warrant, the respondents D.G. Danilevsky, S.N. Mikheyev having considered the civil on the claim of Kasymkhan Seytkhanovich Begmanov to LLP 3X in a public session on May 18, 2012 in Ust Kamenogorsk, to Denis Georgyevich Danilevsky, Sergey Nikolaevich Mikheyev about the honor and dignity protection, compensation of moral harm,
 

HAS ESTABLISHED:

K.S. Begmanov appealed to court with the claim to respondents about the honor and dignity protection, motivating that D.G. Danilevsky and S.N. Mikheyev published the articles in the FLASH newspaper which contain data discrediting the honor and dignity of the author of the documentary film “By the roads of Mustafa Shokay” by K.Begmanov. In this connection he asks the court to recognize the data stated in articles “National democrats against the Customs Union” and “As black becomes white” as inappropriate to reality and to oblige the editorial office of the newspaper FLASH to publish a denial and also to collect the compensation of moral harm in the sum of 5 000 000 tenges from respondents in equal shares.

In the court session, the representative of the claimant by warrant G.G. Khvan prosecuted the case on the decisions stated in it.

The representative of the respondent of LLP 3X by warrant A.N. Bozhkov didn't recognize the claim and specified that the claimant didn’t provide any proofs that the information discrediting the honor and advantage were spread. The freedom of opinions is guaranteed to any person therefore the articles in the newspaper reflect the opinion of the author-journalist concerning the hero of the film Mustafa Shokay.

The respondent D.G. Danilevsky didn't recognize the claim and specified that his article “National democrats against the Customs Union” is entirely sent to the course of criticism of the nationalists interfering the development of democracy at interstate level, the state structures imposing a duty to report the various action within the state order and the attempts to state the history in the light convenient for a certain masses. The statements concerning M. Shokay express his opinion as the historian of rather specified personality.

The respondent S.N. Mikheyev didn't recognize the claim and specified that in his article “As black becomes white” the honor, dignity and professional reputation of the claimant aren’t mentioned in no way. In article there is no evaluation of the claimant as director, artist, screenwriter, his creative abilities aren't questioned, the film is not evaluated. The matter is only about the estimated judgment concerning the hero of the film of historical value M. Shokay. The claimant isn't his lineal heir therefore has no the right to advance similar claims.

Having listened to explanations of the parties, having investigated the records of court, the court considers that it is necessary to refuse satisfaction of claim on the following bases.

As follows from case materials, the article “National democrats against the Customs Union” of D.G. Danilevsky was published in the East Kazakhstan independent newspaper “FLASH” No. 14 (210) of July 14, 2011. In this article the following was specified – “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 days of war, created the so-called Turkestan legion from captured Red Army men. Mustafa Shokay is, in fact, the Kazakh Vlasov”.

The article “As black becomes white” of S.N. Mikheyev was published in the same newspaper No. 15 (211) of August 4, 2011, where the author specified the following: “for a cause of death of the unaccomplished governor-gauleiter of Kazakhstan and Central Asia” (it is about Mustafa Shokay). “And there was no any word about the notorious “Turkestan legion”, one of ideological heads of which was Mustafa Shokay with the convincing validity of this fact”.

K.S. Begmanov, being the author and the director of the documentary film “By the roads of Mustafa Shokay” and appealing to court with the claim about the honor and dignity protection, recognizes that statements of authors of the articles have negative character and are expressed in the form of the statement that K. Begmanov narrates about the cooperation of M. Shokay with the fascists in the film “By the roads of Mustafa Shokay”.

According to item 6 of article 143 of the civil code, the person concerning whom the information discrediting his honor, dignity or the professional reputation was disseminated, have the right to demand indemnification and moral harm along with a denial of such data, caused by their distribution.

Having analyzing these articles published in the newspaper, from the point of view of existence of the data discrediting the honor and dignity, the following is established.

By article 4 of the Constitution of the Republic of Kazakhstan, the conventional principles and norms of international law and the international contracts of the Republic of Kazakhstan are the component of its legal system.

The article 19 of the International Covenant on Civil and Political rights of December 16, 1966 and article 10 of the Convention about protection of human rights and fundamental freedoms (Rome, November 4, 1950) provide that each person has the right to free expression of the opinion; this right includes freedom to look for, receive and extend any information and ideas, irrespective of frontiers, orally, in writing or by means of the press or artistic forms of expression or otherwise at the choice.

The legislator provided the list of circumstances, in the absence of at least one of which the claim can't be satisfied with the court: the fact of distribution of data about the claimant by the respondent, discrediting the character of these data and discrepancy of their reality.

Not representing the facts data are the statements about the facts or events which had no place in reality at that time which challenged the data concern.

The data, not representing the facts, which contain the statement about violation of the current legislation or moral principles of society are discrediting.

Therefore, only such data can be disproved as not representing the facts. It is impossible to demand the proof of the validity of opinion or desire.

In the case under consideration, the documentary film or its author K. Begmanov isn't directly exposed to any criticism, his professional activity as author and the director isn't discussed in the articles, therefore it is impossible to argue that the data distribution discrediting his honor and dignity concerning K. Begmanov took place.

As a result of reading the articles, the readers have no any negative opinion concerning the author of the film K. Begmanov, therefore he can't be considered as the needing in the protection, as provided by article 143 of the Civil Code.

It is established by the conclusion of the expert – the Candidate of Philology, the senior teacher of the department of the Russian language and literature of the East-Kazakhstan State University by the name of Amanzholov T.V. Galkina that the article “National democrats against the Customs Union” contains the negative information about Mustafa Shokay presented in the form of the statements.

However, it is not seen in this conclusion that D.G. Danilevsky’s statement contains the data discrediting the honor and dignity of K. Begmanov, the author and director of the film.

That circumstance that, according to the authors of the articles, Mustafa Shokay's activity was connected with the fascists can't be the basis for honor and dignity protection directly of K. Begmanov.

According to the article 110 of the Civil Procedure Code of the Republic of Kazakhstan, the court condemned the other party all expenses incurred on case to the party in favor of which the decision took place, at least this party was released from the payment of court costs.

On the basis of stated, being guided by the articles 217-221 of the Civil Procedure Code of the Republic of Kazakhstan, the court


HAS SOLVED:

To refuse the satisfaction of the claim of Kasymkhan Seytkhanovich Begmanov to LLP 3X, to Denis Georgyevich Danilevsky, Sergey Nikolaevich Mikheyev about the honor and dignity protection, compensation of moral harm.

To collect the expenses on payment of the help of the representative in the sum of 20 000 (twenty thousand) tenges from Kasymkhan Seytkhanovich Begmanov in favor of LLP 3X.

The decision can be appealed and protested in an appeal order in the East Kazakhstan regional court through Ust-Kamenogorsk city court within 15 days.



Judge                                                             signature                                 T.Kasimov

Copy is true on two sheets Official seal

Judge                                                                                                              T. Kasimov

Reference: the Decision didn't come into legal validity.

Judge                                                                  signature                                 T.Kasimov

Official seal



It is paginated, tied on 2 sheets and sealed
Judge signature T.T.Kasimov
Official seal

Viewed : 1570   Commented: 2

Author: Vladimir Ivanovich Kuzmenkin

Publication date : 25 May 2012 11:13

Source: The world and we

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