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What the time, such the heroes … Did the court support the accomplices of fascists in Kazakhstan?

In Kazakhstan the judicial epic round the journalists of the Flash newspaper who expressed the opinion on the movie “By the roads of Mustafa Shokay” proceeds and they appeared in court for that. The portal “The world and we” watches closely this history which in our opinion is the sign for our time. Here is the next its head and not the last. As though somebody wants it …

2к-1300-12

RESOLUTION


September 27, 2012 Ust Kamenogorsk

The cassation judicial board of the East Kazakhstan regional court in the structure of

presiding chairman of the regional court A.D. Rakhmetulin,

judges E.A. Kozlov, M.Ch.Tokusheva,

with participation of prosecutor A.R. Kuzbosynova,

representatives of the claimant of G.G. Hvan by proxy of March 19, 2012,

and M.O. Salimova by proxy of June 1, 2012,

defendant's representative of LLP 3X A.N. Bozhkov by proxy of April 12, 2012,

respondent D.G. Danilevsky.

having considered in a public court session in regional court a civil case at the suit of Kasymkhan Seytkhanovich Begmanov to LLP 3X, Denis Georgiyevich Danilevsky, Sergey Nikolaevich Mikheyev about the honour and dignity protection, compensation of the moral harm, arrived according to appeals of respondents on the resolution of appeal judicial board of July 12, 2012,


HAS ESTABLISHED:


K.S. Begmanov appealed to court with the claim to respondents of LLP 3-IKS LLP the FLASH newspaper, to D. G. Danilevsky, S. N. Mikheyev about the honour and dignity protection. In justification of the requirements he specified that after the presentation of the documentary film “By the roads of Mustafa Shokay”, the author and director of which is he, in the FLASH newspaper belonging to LLP 3X, the articles of journalists D. G. Danilevsky and S. N. Mikheyev “National democrats against the Customs Union” and “As black becomes white” were published which contain the data discrediting his honour and dignity. He asked to recognize the data stated in the article “National Democrats against the Customs Union” inappropriate to reality, namely: “the other day the presentation of the documentary film “By the roads of Mustafa Shokay” took place in Ust- Kamenogorsk, narrating about the figure who in the years of war cooperated with Hitlerites, created the so-called Turkestani legion from captured Red Army men. Mustafa Shokay is, in fact, the Kazakh Vlasov”; “And a month later, by a state order too already to write about the fascist henchman standing on other party of an entrenchment” in the article “As black becomes white”, namely: “for a cause of death of the unaccomplished governor- Gauleiter of Kazakhstan and Central Asia” (about Mustafa Shokay). “And there are no words about notorious “Turkestani legion”, one of the ideological heads was, with convincing substantiality of this fact, Mustafa Shokay”.

To oblige the editorial office of FLASH newspaper to publish a denial and also to enforce the compensation of moral harm in the sum of 5 000 000 tenges from respondents in equal shares.

The compensation of moral harm is refused by the decision of the Ust -Kamenogorsk city court of May 18, 2012 in satisfaction of the claim of K.S. Begmanov to LLP 3X, to D. G. Danilevsky, S. N. Mikheyev about honour and dignity protection. The sum of 20 000 tenges is collected from K.S. Begmanov in favour of LLP 3X as the expenses on payment of the help of the representative.

The judgment is cancelled by the resolution of appeal judicial board of the East Kazakhstan regional court of July 12, 2012 the new decision was made by which it is resolved:

To recognize the data inappropriate to reality and discrediting the honour and dignity of K.S. Begmanov, containing:

- in the article of D. G. Danilevsky “National democrats against the Customs Union” in the FLASH newspaper of June 26, 2011: “the other day the presentation of the documentary film “By the roads of Mustafa Shokay” took place in Ust- Kamenogorsk, narrating about the figure who in the years of war cooperated with Hitlerites, created the so-called Turkestani legion from captured Red Army men. Mustafa Shokay is, in fact, the Kazakh Vlasov”; “And a month later, by a state order too already to write 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 of the unaccomplished governor- Gauleiter of Kazakhstan and Central Asia” (about Mustafa Shokay). “And there are no words about notorious “Turkestani legion”, one of the ideological heads was, with convincing substantiality of this fact, Mustafa Shokay”.

To oblige the editorial office of FLASH newspaper to publish a denial according to the specified data.

To collect 100 000 tenges from respondents D. G. Danilevsky and S. N. Mikheyev in equal shares in favour of K.S. Begmanov for compensation of moral harm and also the court costs in the form of state duty return in the sum of 1 618 tenges and fees of the representative in the sum of 100 000 tenges.

In the cassation appeal the representative of LLP 3X A.N. Bozhkov asks to cancel the resolution of appeal judicial board, to leave a judgment of the first instance in force and to collect the court costs, the services of the representative in the size of 20 000 tenges, suffered for participation in the courts of appeal and cassation instances. Thus he specifies that the data on K.S. Begmanov didn't extend in publications, the movie wasn't discussed, but only the question of the historic figure was brought up who has no related communications with the author of the movie. The journalists stated the points of view concerning the hero, for what they shouldn't bear responsibility. He considers that in this case the rights of K.S. Begmanov aren't violated, therefore he is the inadequate claimant.

In the cassation appeal D. G. Danilevsky, being disagreeing also with the resolution of appeal judicial board, asked to leave the decision of the Ust- Kamenogorsk city court in force as lawful and reasonable, thus provides the arguments similar to LLP 3X and in the additional complaint, disagreeing with the size of the court costs (service of the representative), considers them excessively overestimated.

Respondent S. N. Mikheyev joined the appeals of respondents of LLP 3X, D. G. Danilevsky about what submitted the application.

Having heard the report of judge M. Ch. Tokusheva, explanations of the representative of respondents of LLP 3X A.N. Bozhkov, respondent D. G. Danilevsky, supported arguments of the complaint, the explanation of representatives of the claimant G.G. Hvan, M. O. Salimova about disagreement with arguments of the complaint, the conclusion of prosecutor A.R. Kuzbosynova, who thought the resolution of the appeal judicial board as the subject to leaving without change, having studied the case materials, arguments of the complaint, the cassation board considers necessary to leave a judgment without change on the following bases.

Apparently from case materials, in July, 2011, the presentation of the documentary film under the name “By the roads of Mustafa Shokay” of the author and director K.S. Begmanov was held in akimat of Ust -Kamenogorsk on which there were the representatives of mass media including the respondents in the person of journalist S. N. Mikheyev.

Subsequently, on July 26, 2011 and August 6, 2011, two articles of journalists D. G. Danilevsky and S. N. Mikheyev under the names “National democrats against the Customs Union” and “As black becomes white” were published in the newspaper “Flash!”.

In the article of D. G. Danilevsky “National democrats against the Customs Union” it is specified: “the other day the presentation of the documentary film “By the roads of Mustafa Shokay” took place in Ust- Kamenogorsk, narrating about the figure who in the years of war cooperated with Hitlerites, created the so-called Turkestani legion from captured Red Army men. Mustafa Shokay is, in fact, the Kazakh Vlasov. And he was put on a pedestal almost as fighter for independent Kazakhstan. And the department of internal policy of Ust- Kamenogorsk not simply notified the journalists of this presentation, but also asked to report on pages of newspapers and TV screens within the government work, that is for payment. It is the strange position. On May 9 they ask within the government work to report the action to the Victory Day, to glorify the heroes of the Great Patriotic War. And a month later, they ask to write about the fascist henchman standing on other party of an entrenchment, according to the government work too”.

From the contents of this paragraph follows that the movie is shot about the person who cooperated with Hitlerites in the years of war, created the Turkestani legion from captured Red Army men, was the accomplices of fascists.

The article of S. N. Mikheyev under the name “As black becomes white” begins with the words: “The process of giving of “warm and fuzzy” look to very doubtful persons for the sake of ideological reforging of the population was well visible on presentation viewing of the documentary film of Kasymkhan Begmanov “By the roads of Mustafa Shokay”.

Further in the text, M. Shokay is specified in the quality of “unaccomplished governor-Gauleiter of Kazakhstan and Central Asia”. “And there are no words about notorious “Turkestani legion”, one of the ideological heads was, with convincing substantiality of this fact, Mustafa Shokay”

As it follows both from the contents of article and from above-mentioned separate statements of the journalist that M. Shokay cooperated with Nazi Germany for overthrow of the Soviet power in Kazakhstan and Central Asia, was ready to head the movement “Turkestani Legion”, however in connection with the death, his idea wasn’t carried out up to the end.

Having analyzing the produced evidence, the court of appeal instance came to a conclusion that the above-named articles, namely in the statements of journalists containing in them, the honour, dignity of the author and the director of this movie K.S. Begmanov offended.

The court of cassation instance agrees with such conclusion also as according to case materials, the movie devoted to activity of the public figure, the first Kazakh political refugee M. Shokay who has given the life for the sake of freedom of the Turkic people, is based on the documentary directives investigated by scientists-historians, political scientists of the Republic of Kazakhstan and specially created commission on rehabilitation questions at the Department of the National Security Committee on the Kzyl-Orda area.

M. Shokay wasn't the fascist helper ("henchman") and didn't cooperate with Hitlerites, didn't oppose the interests of the people. The fact that concerning it wasn't brought any criminal case concerning him, not shown any charge in this occasion are the evidence to it. On the contrary, the name of M. Shokay was appropriated to the streets of some cities of the Republic of Kazakhstan (Almaty, Kyzylorda, Ust -Kamenogorsk), the memorial plaque is opened, the monument in the Parisian suburb Nogent-sur-Marne and in the city of Paris is established.

Besides, the documentary film “By the roads of Mustafa Shokay” was included by the Ministry of Education and Science of the Republic of Kazakhstan in the list of literary works for use in the general education program on history studying in educational institutions.

By the allowed negative statements through mass media to the hero of the movie, the certain weight of readers formed not only negative opinion about him, but also there is an impression that the author of the movie propagandizes the person who in the years of war cooperated with the fascists of Germany, thereby breaks the principles of the morals existing in society and the state condemning the idea of fascism. While the author and the director of the movie tried to inform the audience of a basis of M. Shokay’s activity as fighter for freedom and independence of the people of Kazakhstan, Transcaucasia and Central Asia, based on primary sources and archival materials.

Satisfying claims of K.S. Begmanov, the court of appeal instance legally was guided by articles 141, 143 of the Civil Code and also item 1 of the Standard resolution of the Supreme Court of the Republic of Kazakhstan No. 6 of December 18, 1992 (with the made amendments) “Of legislation application of u and dignity protection in jurisprudence or business reputation of physical and legal entities”.

According to point 1 of the Standard resolution, data inappropriate to reality which belittle the honour and dignity of the citizen or the organization in public opinion of certain citizens from the point of view of observance of laws, the moral principles of society are discrediting.

Honour is a public assessment of the person, a measure of its spiritual and social qualities.

Dignity is an internal self-assessment the person of own qualities, abilities, the public value.

The business reputation is a steady positive assessment of business (production, professional) advantages of the person by public opinion.

The fact of distribution of damaging evidence is confirmed by the publication of articles in mass media, namely in the newspaper “Flash!”, namely the placement of the text of articles on a site: www.flashpress.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 honour and dignity.

According to article 21 of the Law of the Republic of Kazakhstan “Of mass media” (further the Law) the journalist is obliged to respect the legitimate rights and interests of physical and legal entities.

According to provisions of articles 141, 143 of the Civil Code, article 19 of the Law, the citizen has the right to demand in a judicial order of a denial of the data discrediting his honour, dignity or business reputation and also compensations of the moral harm connected with violation of the non-property rights.

Arguments of respondents that their statements about cooperation of M. Shokay with Hitlerite Germany in the years of the Second World War sounded in articles, don't mention the honour and dignity of K. Begmanov, can't be recognized as reasonable as these judgments extended through mass media, belittle K.S. Begmanov dignity, creating at readers the negative attitude to him as to the director and the author who shot the movie about the traitor of the Homeland, the colleague of fascist Germany. Whereas the movie about activity of M. Shokay was shot on the basis of documentary materials and the research works which had the historical value and have become a cultural heritage of modern society.

In this regard the resolution of appeal judicial board on satisfaction of claim requirements of K.S. Begmanov, connected with violation of his non-property rights, the cassation board finds lawful.

According to articles 110, 111 of the Civil Procedure Code of the Republic of Kazakhstan, the party in favour of which the decision took place, the court awards compensation of all court costs incurred on case at a rate of the satisfied part of the claim by other party and also expenses on payment of the help of the representative participating in process, at a rate of the expenses incurred by the party. According to monetary requirements these expenses shouldn't exceed ten percent from the satisfied part of the claim.

Expenses on fee of the representative in the size of 100 000 tenges are confirmed by the receipt and the contract being in case materials.

Taking into account that the this case is considered in the courts of the first, appeal and cassation instances in which the representative of the claimant participated, the board agrees with the size of the awarded sum of the account of expenses compensation for services of the representative.

On the basis of stated, the board finds the arguments of the complaint insolvent.

Being guided by article 383-20, item 1, the board of the Civil Procedure Code


HAS RESOLVED:


To leave the resolution of appeal judicial board of the East Kazakhstan regional court of September 27, 2012 without change, the appeals of respondents without satisfaction.

Chairman:                                                                                                         A.D.Rakhmetulin

Judges:                                                                                                               E.A.Kozlov
                                                                                                                            M.Ch.Tokusheva

At our request the editor of the East Kazakhstan independent newspaper “Flash!” Denis Danilevsky commented on this judgment and a situation round Mustafa Shokay's figure in Kazakhstan:

- Certainly, it was absolutely clear to us, what consideration both in appeal and in cassation instances will come to the end. Only “puncture” of the admirers of Shokay happened in city court. Judge Tolendi Kasimov made the lawful and fair decision, having refused Begmanov's claim. He didn't begin to sully the name and reputation in this dirty case on copying of history of the Great Patriotic War.

Naturally, it is useless to look for justice in this case in a legal framework of Kazakhstan. Certainly, we will address in the Supreme Court. We understand that we will achieve nothing, but let the judges will sully in this case as much as possible, and, thus, will become in history. It is even more senselessly to appeal to any committees on human rights of the UN where Kazakhstan citizens acquired the right to address. After all these structures became the tools of modern world fascism long ago.

This issue will be resolved only by time. What the time – such the heroes. Today the power chose such figure as Mustafa Shokay as the hero. Probably, he corresponds to spirit of this time. But for us he will never be the hero. Our heroes are Aaliyah Moldagulova, Manshuk Mametova, Tolegen Tokhtarov, Nurken Abdirov, Kasym Kaysenov, 28 guardsmen-members of Panfilov and hundred thousands other Kazakhstan citizens battling on fronts, forging the Victory by the dedicated work in the back. For us heroes are all Soviet people who have offered the million lives to break ridge to fascism.

Already today the streets bearing a name of Shokay, adjoin to the streets bearing the names of the Heroes of the Soviet Union. It is the strange situation, any world behind the looking-glass. Judging by that zealous eagerness with what the judicial instances protect him, that day when monuments to this figure will stand on central squares of the cities and villages is near. The way to truth is very heavy, but truth all the same will triumph. The wind of history will dispel this garbage.
I am proud of this process. We, the small regional newspaper, raised such important questions, in fact, the questions of the Good and Evil, Light and Darkness, eternal questions of a moral choice. We stood under this pressure of administrative, judicial pressure, under pressure of threats of physical destruction. We made the choice and made it long ago. I am proud of our small group of adherents. I’m not shame before the memory of my grandfather, Dmitry Vasilyevich Danilevsky whom on November 12, 1942 the German chasteners arrested and destroyed for belonging to Communist party and bodies of People's Commissariat for Internal Affairs. It was heavier in the war, at the front. But the soldiers of that war stood. We will stand also.

Viewed : 1938   Commented: 0

Author: Vladimir Kuzmenkin

Publication date : 26 November 2012 01:00

Source: The world and we

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