Case Summary and Outcome

The United Nations Human Rights Committee (HRC) held that the Kyrgyzstan Republic violated the right to freedom of expression under Article 19 of the International Covenant on Civil and Political Rights (ICCPR) of Cholpon Djakupova, a well-known human rights lawyer and former member of parliament, and Narynbek Idinov, a journalist. The case arose after Djakupova publicly criticized Kyrgyz President Almazbek Atambaev during a roundtable discussion between civil society and government representatives, and Idinov published an article about it. As a result, a defamation lawsuit was filed against them, which led to a court order to delete Djakupova’s statement from the website, impose fines of 3 million Kyrgyz soms, and freeze their assets. Further, the court also imposed a travel ban, preventing both from leaving the country for over a year. The petitioners argued that the trial and sanctions (heavy fine, travel ban, freezing of assets, and removal of the article from the website) were illegal and disproportionate restrictions on their freedom of expression, intended to silence criticism on matters of public interest. The State argued that the measures were legal and proportionate under its domestic law, which protects the president’s reputation against expressions considered defamatory. The Committee held that these measures constituted unlawful and disproportionate restrictions on freedom of expression. It emphasized that under Article 19 of the ICCPR and General Comment No. 34, criticism of public officials, particularly heads of state, falls within the core of protected political expression. The Committee held that the fines imposed were harsh and had a chilling effect on civil society and independent media.

 

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Facts

Cholpon Djakupova is a well-known human rights lawyer and former member of parliament in Kyrgyzstan, and Narynbek Idinov, a journalist and co-founder of the news portal (Zanoza), both are citizens of Kyrgyzstan. 

In 2016, Kyrgyzstan began tightening its control over independent media and civil society, with security agencies investigating social media posts that criticize President Almazbek Atambaev and interrogating individuals who criticized him. On behalf of the President, the Prosecutor General filed four major defamation lawsuits against journalists, media outlets, and human rights defenders, seeking a total compensation of 48 million Kyrgyzstani soms. 

In March 2017, Djakupova agreed to represent journalists who had been sued in those defamation cases. On 30 March 2017, during a roundtable discussion on freedom of speech and assembly to foster dialogue between civil society and the government, Djakupova delivered a speech criticizing the President and authorities for undermining freedom of expression and manipulating the courts. The same day, Idinov published the full text of his speech on his website Zanoza.kg. 

The government perceived this publication as an attack on the President’s “honour and dignity.” [para. 2.1] On 20 April 2017, the Prosecutor General, acting on behalf of President Atambaev, filed a defamation lawsuit against Djakupova and Idinov, citing Article 4 of the “Law on the Guarantees of Activities of the President” and Article 18 of the “Civil Code”. The Prosecutor General demanded 3 million soms from each defendant, deletion of the article from Zanoza.kg, and a declaration that Djakupova’s statements were false. The Prosecutor General claimed that Djakupova’s speech contained sarcasm and irony intended to damage the President’s reputation. 

On 26 April 2017, the Oktyabrsky District Court of Bishkek issued temporary injunctions, including a travel ban preventing the Applicants from leaving Kyrgyzstan and freezing Djakupova’s assets, including her house and bank account. The court justified these measures as necessary to ensure payment if the applicants lost the case. The applicants appealed the injunctions; however, the Bishkek City Court on 18 May 2017 denied the appeal, and on 19 June 2017, the Supreme Court rejected it again.

On 30 June 2017, the Oktyabrsky District Court, the court held Djakupova guilty of defaming the President, ordered Idinov to delete the article, and imposed fines of 3 million soms on each one. 

On 17 August 2017, the Bishkek City Court rejected their appeal, and on 30 November 2017, the Supreme Court dismissed their cassation appeal and upheld the decision.

Between 6 and 19 December 2017, the applicants requested to pay the fines in installments due to their low income, but the District Court refused, and the City Court upheld this decision on 7 February 2018. Between 12 January and 14 February 2018, the President’s legal representative requested foreclosure of Djakupova’s assets to cover the damages, which the court approved.

United Nations Human Rights Committee Communications

On 27 April 2018, the petitioners Djakupova and Idinov submitted a communication to the United Nations Human Rights Committee (HRC) under the Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR). The petitioners argued that the defamation trial, the financial penalty imposed—which includes financial reparation, including a travel ban, asset freeze, and excessive fines—and the removal of the article containing Djakupova’s speech from the website “Zanoza. kg” website constituted illegal and disproportionate restrictions on their freedom of expression under Article 19 of the ICCPR. They also noted that these sanctions were intended to silence criticism of public officials and inhibit debate in the public interest.

On the other hand, Kyrgyzstan argued that the measures imposed against the petitioners were legal and proportionate under its domestic law, specifically the Law on Guarantees for the Activities of the President and the Civil Code, which protect the reputation of the president.

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Decision Overview

Due to the complexity of the case, the United Nations Human Rights Committee had to examine potential violations to different rights protected by the ICCPR. This case analysis will focus on the issues that concern freedom of expression. The main issue relating to this right that the Committee had to analyze was whether the sentences imposed on the petitioners for allegedly defaming the country’s president violated their right to freedom of expression, protected by Article 19 of the International Covenant on Civil and Political Rights.

The petitioners argued before the UN HRC that the penalty imposed on them, including the travel ban, asset freeze, and excessive fines, were unusually harsh, and therefore constituted unlawful and disproportionate restrictions on their freedom of expression and aimed to silence criticism of public officials. On the other side, Kyrgyzstan, argued that the measures were lawful and proportionate, under its domestic legislation, specifically the Law on the Guarantees of the President’s Activities and the Civil Code, which protect the reputation of the President. The State also justified the travel ban on procedural grounds, claiming it was necessary to ensure the petitioners’ participation in the civil proceedings.

First, the Committee held that the case concerned clear restrictions on the petitioners’ freedom of expression, particularly the deletion order, the harsh fines, and the accompanying injunctions. Referring to its General Comment No. 34 (2011), the Committee reaffirmed that freedom of expression and opinion form the cornerstone of every free and democratic society. Accordingly, the UN HRC explained that restrictions to the rights to freedom of expression are only allowed if it did not comply with any of the elements of the three-part test: (i) prescribed by law, (ii) pursue a legitimate aim, and (iii) are necessary in a democratic society. It further emphasized that public debate and criticism of political figures lie at the heart of protected expression, and that public officials must tolerate a greater degree of scrutiny than ordinary citizens.

The Committee accepted that the restrictions were “provided by law” and “pursued a legitimate aim” which is the protection of reputation within the meaning of Article 19. [para. 7.4] However, it held that the necessity and proportionality requirements were not met as Djakupova’s statements were made in a public roundtable concerning constitutional and public-interest matters, not in a private or defamatory context. Furthermore, the UN HRC explained that “in any event, a public interest in the subject matter of the criticism should be recognized as a defence and care should be taken by States parties to avoid excessively punitive measures and penalties.” [para 7.5] In addition, it stated that the speech referred to the president of the country, and “all public figures, including those exercising the highest political authority such as heads of State, [who] are legitimately subject to criticism and political opposition.” [para 7.5]

Then, the Committee held that the fines imposed were equivalent to approximately 31 years of income for Idinov and 2.5 years for Djakupova, which were deemed excessively punitive and disproportionate. Under these premises, the UN HRC explained that the Kyrgyz courts failed to justify the amount or demonstrate why such severe penalties were necessary to protect the President’s reputation.

Accordingly, the Committee held that the restrictions were not necessary, not proportionate, and not justified in a democratic society, and therefore, there is a violation of Article 19 of the ICCPR.

Finally, the Committee ordered Kyrgyzstan to provide the petitioners with an effective remedy, including full reparation, encompassing reimbursement of legal costs, compensation for expenses caused by the travel ban, and adequate monetary compensation for the harm suffered. Furthermore, the UN HRC ordered the state to review national laws and practices to ensure full protection of freedom of expression; and an alignment of domestic legislation with the ICCPR’s standards to prevent similar violations in the future.

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