Case Summary and Outcome

The UN Human Rights Committee held that the State of Kyrgyzstan violated a journalist’s right to freedom of expression, under Article 19 of the International Covenant on Civil and Political Rights (ICCPR), after ordering her to pay compensation for non-pecuniary damages and to remove an article from on an online news portal, for allegedly defaming former President Almazbek Atambaev. The petitioner, journalist Dina Maslova, faced a civil lawsuit, brought by the Prosecutor General of Kyrgyzstan, for publishing, on an internet news portal, an anonymous article criticizing Atambaev. The domestic courts of Kyrgyzstan granted the Prosecutor General’s claim and ordered Maslova to pay the sum of 38.000  euros in favor of Atambaev and to remove the article in question from the news site. The petitioner filed a communication before the UN Human Rights Committee arguing that the domestic courts’ rulings violated her right to freedom of expression, as the measures issued against her were unnecessary in a democratic society and disproportionate. The State, for its part, claimed that the restriction of the petitioner’s freedom of expression was compatible with Article 19 of the ICCPR and that the former President had waived his right to compensation—thus mitigating any chilling effect on expression. The UN Human Rights Committee found that the restrictions imposed on Maslova’s expression were neither necessary nor proportionate. The Committee stressed that in a democratic society, public figures—including heads of state—can be legitimately criticized and that national courts failed to properly assess the content of the article or the context of its publication. Furthermore, the Committee rejected the State’s argument that the former President had waived his right to compensation, concluding that the domestic judgments had a chilling effect on the petitioner’s right to freedom of expression in her role as a journalist.

Facts

Dina Maslova is the founder of the “ProMedia” Foundation and editor-in-chief of the Internet news portal Zanoza in Kyrgyzstan. On March 30, 2017, Zanoza published an anonymous article about a speech given by former Kyrgyz parliamentarian and human rights activist, Ms. D., in which she criticized former President of Kyrgyzstan Almazbek Atambaev for misusing laws to attack the media—and held him responsible for systematic human rights violations in the country. The article also quoted Ms. D. describing the former President as someone with “maniacal tendencies.” [para. 2.1].

On April 20,  the Prosecutor General filed a civil lawsuit against Ms. D., ProMedia, and its founders, including Maslova, arguing that the article defamed Atambaev. The prosecutor based his claim on the opinion of a linguistic expert who concluded that the statements in the article were insulting and defamatory. Furthermore, the prosecutor considered that the news item violated Article 4 of the Law on Guarantees of the Activities of the President of Kyrgyzstan and Article 18 of the Civil Code—which protects the right to honor and dignity of individuals.

On April 26, the Oktyabrsky District Court issued an injunction ordering ProMedia to remove the contested article and prohibiting Maslova from leaving the country. On June 30, the same court ruled on the merits of the case and granted the prosecutor’s civil claim. The court found that both the title of the article (“Ms. D.: time to reprimand a person with manic tendencies”) and its content violated the right to honor of Atambaev since it included false and harmful information. In addition, the court emphasized that, according to the Law on Mass Media,  journalists and editors have to verify the accuracy of the information they disseminate. The court ordered ProMedia to remove the article from Zanoza’s website, and Maslova and the rest of the defendants to pay 3 million soms (about 38,000 euros) for non-pecuniary damages in favor of Atambaev.

On August 17,  the Bishkek City Court upheld the district court’s decision. It considered that the expert’s findings were sufficient to prove the defamatory nature of Ms. D’s words. The court held that the news piece distorted parts of Ms. D’s speech and that the defendants failed to prove the truth of the statements and content of the article. The court held that since the identity of the author of the article was unknown, the founders of ProMedia should be held liable for its content by enabling its dissemination.

On November 30,  the Supreme Court of Kyrgyzstan rejected the cassation appeal filed by Maslova.

On August 30, 2018, Dina Maslova submitted a communication before the UN Human Rights Committee, in which she argued that Kyrgyzstan violated her right to freedom of expression under Article 19 of the International Covenant on Civil and Political Rights (ICCPR).

On February 26, 2019, the Government of Kyrgyzstan submitted its observations to the Committee, stating that the sanctions imposed on the petitioner did not constitute a violation of her right to freedom of expression.

Decision Overview

The UN Human Rights Committee had to decide whether the measures imposed on journalist Dina Maslova by the national courts of Kyrgyzstan—the payment of non-pecuniary damages amounting to 38.000 euros and the removal of an online news item—following the publication of an article critical of former President Almazbek Atambaev, violated the petitioner’s right to freedom of expression under Article 19 of the ICCPR.

Maslova argued that the decisions issued by the Kyrgyz courts violated her right to freedom of expression under Article 19 of the ICCPR since the restrictions they ordered were not provided by law, nor necessary in a democratic society,  or proportionate considering the aim they pursued. The petitioner emphasized that prosecuting a journalist for disseminating another person’s statements undermines debate on issues of public concern. She further argued that the courts did not take into account the standards applicable to freedom of expression regarding public figures—such as heads of state—and did not adequately assess the contribution of the article to the public debate. In turn, Maslova criticized the excessive amount of non-pecuniary damages awarded to the former President. Finally, she highlighted the context of general deterioration of the right to freedom of expression in Kyrgyzstan and referred to similar cases against other journalists, independent media, and human rights defenders.

Kyrgyzstan, for its part, argued that the analysis of Ms. D.’s speech showed that her expressions were vehement, ironic, and sarcastic—and undermined the President’s status and reputation. The State held too that the article distorted certain parts of the speech. Furthermore, the State considered that the restriction of the petitioner’s right to freedom of expression was legitimate because it protected the honor and reputation of the former President. Additionally, the State argued that the petitioner had not suffered any damage, as the former President had waived his claim for payment, in 2018, regarding non-precuniary damages.

First, the Committee recalled its General Comment 34 (2011) to highlight that “freedom of expression is fundamental to any society and constitutes the cornerstone of all free and democratic societies.” [para. 8.3] The Committee further clarified that freedom of expression includes the freedom to disseminate information and ideas. Subsequently, the Committee stated that the right to freedom of expression may be subject to limitations, provided that such interferences are prescribed by law and necessary to ensure “respect for the rights or reputations of others” or “the protection of national security, public order, or public health or morals.” [para. 8.3].

The Committee then recalled that the existence of the press and media outlets—including internet news portals—, free from censorship and restrictions, is essential to guarantee freedom of opinion and expression. It also held that, in line with the State’s assertions, “the judgments of the domestic courts were based on the relevant provisions of Kyrgyz legislation, and their application pursued the legitimate aim of the protection of the reputation or rights of others, namely the then President.” [para. 8.4]. Thus, the Committee established that the central question in the case was whether the restriction to the freedom of expression of the petitioner was necessary and proportionate.

Citing its own jurisprudence in the case of Marques de Morais v. Angola (CCPR/C/83/D/1128/2002), the Committee stated that concerning public debates about political figures, it is essential for expression to be free from inhibitions. The Committee also stated that public figures, including heads of state, can legitimately be criticized in a democratic society.

Subsequently, the Committee found that the domestic courts relied entirely on the findings of the linguistic expert—who focused on Ms. D’s speech but did not evaluate the overall content of the published article. It also held “that the courts did not attempt to conduct their own legal analysis of the article in question. In particular, their judgments did not specify which passages of the article were deemed problematic or how they affected the President’s honour and reputation.” [para. 8.5]

Moreover, the Committee concluded that the courts did not adequately take into account the petitioner’s status as a journalist and the content of the publication. It emphasized too that “it transpire[d] from the judgments that the courts proceeded from the fact that the article merely disseminated the statements by Ms. D. that the court found untrue and offensive. The domestic courts did not, however, adduce any reasons for taking adverse actions against a journalist for reporting on matters of public interest by disseminating the statements of another person.” [para. 8.6] The Committee also underscored that the courts did not take into consideration the context of the publication and its contribution to a public interest debate “and the fact that a head of State should tolerate higher levels of criticism than a private individual.” [para. 8.6]

In turn, the Committee rejected the State’s argument that the former President’s decision to waive compensation for non-pecuniary damages minimized or mitigated the legal effects of the domestic judgments. On this point, the Committee concluded that “given that the petitioner was sued for defaming the then head of State and for exercising professional journalistic activities while reporting on issues that were undoubtedly matters of public interest, it is evident that the judgment of the domestic courts had a chilling effect on the petitioner’s right to freedom of expression.” [para. 8.7]

For all these reasons, the UN Human Rights Committee unanimously concluded that Kyrgyzstan violated the petitioner’s right to freedom of expression under Article 19 of the ICCPR. Hence, the Committee ordered Kyrgyzstan to reimburse the court expenses paid by the petitioner and to provide her with adequate compensation. The Committee also ordered the State to take all necessary measures to prevent similar violations in the future.