Appointment of Expert Examination in Cases on Protection of Honor, Dignity, and Business Reputation
The appointment of an expert examination in cases concerning the protection of honor, dignity, and business reputation in the Republic of Kazakhstan is of significant importance, as expert opinions enable the court to establish facts that require specialized knowledge.
When determining whether the information disputed by the plaintiff is defamatory in nature, as well as for assessing its perception considering that disseminated information may be communicated to third parties in various ways (figuratively, indirectly, offensively, etc.), courts should, where necessary, appoint an expert examination (for example, a linguistic examination) or engage a specialist for consultation (for example, a psychologist).
Typically, the court appoints an expert examination when it is necessary to:
- determine whether the disputed statements contain assertions of fact or constitute value judgments;
- identify whether a publication (post, article, report) contains negative connotations or offensive expressions;
- establish whether the text is defamatory, i.e., whether it affects a person's honor, dignity, or business reputation.
The review of judicial practice has shown that in many cases plaintiffs and defendants independently submit specialist opinions.
At the same time, courts generally exercise their authority to appoint expert examinations rather infrequently.
On December 22, 2023, an article by journalist K. entitled “First Come, First Served, or How the Ministry of Agriculture's Veterinarians Buy Special Footwear with Budget Millions” was published on a website.
The Ministry filed a lawsuit against LLP and K. seeking a retraction of information that was allegedly untrue and damaging to its reputation.
The claim was based on the fact that the journalist, referring to data from the public procurement portal, wrote that the Republican Veterinary Laboratory had purchased more than three thousand pairs of leather slippers over two years. The article highlighted the “oddity” of such procurement by a state enterprise and posed the question: “What kind of ‘centipedes’ have appeared in the veterinary laboratory?” In doing so, the author questioned the procurement of special footwear intended for veterinary doctors, laboratory technicians, and sanitary personnel directly involved in diagnosing particularly dangerous animal diseases, evidently referring to the plaintiff's employees as “centipedes.”
The statements in the article that “They have now supplied footwear worth almost KZT 9.9 million” and “Surprisingly, last year KZT 3 million more in budget funds was spent on leather slippers. Thus, over two years the veterinary laboratory purchased slippers worth nearly KZT 16.5 million” were alleged to be untrue.
When resolving the dispute, the court concluded that the article was aimed at exposing the laboratory in connection with the non-transparent procurement of special footwear. By using techniques such as presenting facts, critically analyzing the procurement process, comparing it with previous procurements, and referring to changes in procurement procedures, the author attempted to demonstrate inefficient use of budget funds, attract public attention, and provoke criticism of such practices.
Furthermore, depending on how the publication was perceived by a broad audience and its impact on readers, the disputed phrases could affect the laboratory's business reputation. The significant number of subscribers to electronic media outlets created a platform for broad dissemination of the information, which could undoubtedly have a negative effect on the Ministry's reputation.
By the judgment of the Specialized Interdistrict Economic Court of Astana dated April 18, 2024, the claim was upheld.
The appellate judicial panel disagreed with the conclusions of the court of first instance, noting that the court, relying on a specialist's opinion, had failed to determine which specific statements were considered untrue. At the same time, it provided a legal assessment of the author's value judgments, such as “centipedes,” “golden slippers,” and “strange procurements,” which contradicted paragraph 12 of the Regulatory Resolution on the Protection of Honor, Dignity, and Business Reputation and paragraph 17 of the Regulatory Resolution on Compensation for Moral Harm.
The judicial panel ordered a forensic philological examination to be conducted by a court expert possessing specialized scientific knowledge confirmed by a state license and qualification certificate issued by the Ministry of Justice of the Republic of Kazakhstan, and having access to special methodologies included in the state register of forensic examination methodologies.
According to the expert's opinion, the article contained negative information regarding the plaintiff; however, such information was expressed as the journalist's personal opinion and value judgments.
Based on this, the expert concluded that the article did not contain any information that could be classified as damaging to the Ministry's business reputation.
Pursuant to paragraph 2 of Article 2 of the Law of the Republic of Kazakhstan “On Mass Media”, everyone has the right to freely receive and disseminate information by any means not prohibited by law.
The judicial panel found that the plaintiff had failed to prove how the information concerning the public procurements in question was defamatory, untrue, and damaging to its business reputation. Moreover, the data cited in the publication had been obtained by the author from the official public procurement web portal.
By the ruling of the Judicial Panel for Civil Cases of the Astana City Court dated August 22, 2024, the judgment of April 18, 2024, was overturned, and a new decision was issued dismissing the claim.
Jurisdiction
Jurisdiction over disputes of this category is determined in accordance with the general rules established by Article 29 of the Civil Procedure Code (CPC): claims shall be filed with the court at the defendant's place of residence or location.
According to Part 12 of Article 30 of the CPC, claims against multiple defendants may be filed at the location of any one of the defendants at the plaintiff's discretion.
Cases concerning the protection of honor, dignity, and business reputation are considered by courts of general jurisdiction. Claims for the protection of honor, dignity, and business reputation of legal entities also fall within the jurisdiction of district (city) courts. Where the parties to such cases are a legal entity or an individual entrepreneur, the claim is subject to consideration by an economic court.
Cases related to the protection of the rights and interests of minors fall under exclusive jurisdiction and are to be considered by specialized interdistrict juvenile courts.
Analysis of judicial practice has shown that courts generally comply with jurisdictional rules.
At the same time, certain violations regarding jurisdiction have been identified.
For example, by a ruling of the Mugalzhar District Court of Aktobe Region dated April 30, 2024, a mediation agreement was approved in a case brought by Sh. against S. seeking a public apology on social media.
The case materials indicate that the plaintiff, Sh., is the father of minor “A”, whose photographs and videos containing false, inaccurate information insulting his honor and dignity were published by the defendant.
The claim was filed in the interests of the minor child, namely the plaintiff's son born in 2011.
Under Part 3 of Article 27 of the CPC, cases involving the protection of the rights and interests of minors fall under exclusive jurisdiction and must be considered by specialized interdistrict juvenile courts.
Since the claim affected the interests of minors (including demands to prohibit dissemination of information and remove photographs), the case required a special procedural approach and consideration by a specialized court (this provision entered into force on September 1, 2023).
At the stage of accepting the claim or during preparation and consideration of the case, the court should have returned the claim or transferred it according to jurisdiction pursuant to subparagraph 2) of Part 1 of Article 152 of the CPC, but failed to do so.
By Law No. 84-VII of the Republic of Kazakhstan dated December 20, 2021, amendments were introduced to Article 32 of the CPC, allowing parties to agree on extraterritorial (contractual) jurisdiction.
This provision is actively applied by courts. During the analyzed period, a total of 48 cases were transferred under extraterritorial jurisdiction.
For example, by agreement of the parties, a case brought by B. against P. concerning recognition of information as untrue, damaging to honor and dignity, and seeking compensation for moral harm was transferred from a court in the North Kazakhstan Region to the Karakiya District Court of Mangystau Region.
Similarly, a case brought by K. against O. concerning the protection of honor and dignity and compensation for moral harm was transferred from the Interdistrict Civil Court of Astana to Court No. 2 of the Alihan Bokeikhan District of Karaganda under the rules of extraterritorial jurisdiction.
The aforementioned article grants the parties the right to change territorial jurisdiction by mutual agreement. Such an agreement is binding both on the parties and on the court and must be made in writing.
State Duty
According to subparagraph 7) of Article 610 of the Tax Code, a state duty in the amount of 0.5 Monthly Calculation Index (MCI) is charged for non-property claims.
Pursuant to subparagraph 14) of Article 610 of the Tax Code, for claims filed by individuals seeking monetary compensation for moral damages caused by the dissemination of information damaging honor, dignity, and business reputation, the state duty amounts to 1 percent of the claim value.
The analysis showed that courts generally calculate the state duty correctly when a statement of claim is filed.
However, certain shortcomings have been identified.
According to paragraph 7 of the Regulatory Resolution on Court Costs, if a document confirming payment of the state duty is not attached, if the duty has not been paid in full, or if the payment was made using incorrect details (beneficiary, code, budget classification code, etc.), the statement of claim shall be returned pursuant to Article 152 of the Civil Procedure Code (CPC), since non-payment of the state duty prevents the initiation of civil proceedings.
For example, in some courts there is a practice of charging a state duty in the amount of one MCI for claims concerning the protection of honor, dignity, and business reputation, which is incorrect.
Thus, in accordance with the requirements of the Tax Code, where only a claim for the protection of honor, dignity, and business reputation is filed, the state duty should be paid in the amount of 0.5 MCI. If a claim for compensation of moral damages is also filed, a state duty of 1 percent of the amount claimed must be paid.
Simplified Proceedings
Article 267-2 of the CPC establishes a list of cases that may be considered under simplified (written) proceedings.
The review showed that virtually all such cases are examined under the general rules of claim proceedings.
At the same time, one case was identified that had been considered under simplified (written) proceedings.
Sh. and A. filed a claim against T. seeking protection of honor, dignity, and business reputation, as well as compensation for moral damages.
By the ruling of the Kyzylorda City Court dated December 6, 2024, the case was ordered to be considered under simplified proceedings.
By the decision of the same court dated December 30, 2024, the claim was upheld and KZT 1,000,000 in moral damages was awarded against the defendants.
By the court's ruling dated January 20, 2025, this decision was set aside.
By a judgment dated April 14, 2025, which entered into legal force, the claim was dismissed.
Cases concerning the protection of honor, dignity, and business reputation belong to the category of non-material disputes.
Such cases should be considered under ordinary claim proceedings because they involve the protection of non-property rights, require a comprehensive examination of evidence, assessment of the content of disputed statements, and often necessitate linguistic and other expert examinations.
Since the proper determination of all circumstances in such cases frequently requires examination of numerous pieces of evidence or the collection of additional evidence, courts are recommended to apply subparagraphs 5) and 6) of Part 3 of Article 267-1 of the CPC.
Return of the Statement of Claim
Article 152 of the CPC establishes an exhaustive list of grounds for returning a statement of claim.
Judicial practice includes claims seeking recognition of information disseminated through YouTube, Telegram channels, and Facebook as false and damaging to the plaintiff’s honor, dignity, and business reputation.
Some courts return such claims with reference to paragraph 3 of Article 143 of the Civil Code, which establishes a mandatory pre-trial procedure for claims related to the publication of a retraction (reply) in mass media.
For example, by the ruling of the Taraz City Court dated July 25, 2024, E.'s claim against D. and others seeking recognition of a publication as false and damaging to business reputation was returned pursuant to subparagraph 1) of Part 1 of Article 152 of the CPC due to failure to comply with the pre-trial dispute resolution procedure.
According to Article 143 of the Civil Code, if information damaging the honor, dignity, or business reputation of a citizen or legal entity is disseminated through mass media, it must be refuted free of charge in the same media outlet. A citizen or legal entity whose rights or legitimate interests have been violated through mass media also has the right to demand publication of a reply free of charge in that media outlet.
However, in the above case, the publications had been posted by the defendants on YouTube and the “Base” Telegram channel, both accessible to any user. Therefore, social media platforms are not responsible for user-generated publications.
Accordingly, the court’s conclusion that the plaintiff was required to submit a pre-trial demand for retraction to the defendants was incorrect.
Another example is the ruling of the G. Musrepov District Court of the North Kazakhstan Region dated July 28, 2023, whereby S.'s claim against B. and others seeking recognition of information as false and damaging to honor, dignity, and business reputation was returned on similar grounds.
The judge indicated that the plaintiff had not applied to the YouTube Partner Program and the online publication “Agroblog.kz” requesting a retraction of the disseminated video material and had not provided evidence of refusal to publish such a retraction.
The Judicial Panel for Civil Cases of the North Kazakhstan Regional Court correctly found the return of the claim to be unjustified, noting that the plaintiff had not brought claims against any mass media outlet and had not sought publication of a retraction in the statement of claim.
Since the plaintiff's claims against three individuals were limited solely to recognition of the information as false and damaging to honor, dignity, and business reputation, there were no grounds for returning the statement of claim.
Leaving a Claim Without Consideration
The grounds for leaving a claim without consideration are established by Article 279 of the CPC.
The review demonstrated that courts generally comply with this procedural provision.
Nevertheless, there have been instances where courts returned claims on grounds not provided for by law.
For example, by the ruling of the Kokshetau City Court dated June 4, 2024, B.'s claim against O. seeking protection of honor and dignity and recovery of monetary compensation was returned because the claims had not been sufficiently specified.
However, such a ground is not предусмотрено by procedural legislation.
By the ruling of the Judicial Panel for Civil Cases of the Akmola Regional Court dated August 14, 2024, that ruling was overturned and the case was remanded for a new hearing, resulting in a delay in the proceedings.
Although the claim had been filed on March 27, 2024, the case was considered on the merits only on October 31, 2024.
Thus, a relatively uncomplicated case remained unresolved for seven months.
Termination of Proceedings Due to Settlement Agreements
The concept of introducing conciliation procedures as one of the priority areas for improving the judicial system was enshrined in the Law on Mediation, which laid the foundation for the development of mediation as a dispute resolution mechanism in various fields.
Judges take measures to reconcile the parties, assist them in resolving disputes at all stages of the proceedings, and send invitations to participate in conciliation procedures.
Current legislation recognizes the possibility of concluding a settlement agreement in cases of this category exclusively between the parties to the dispute. The agreement must specify the terms accepted by the parties, as well as the procedure and timeframe for its implementation.
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