In 2023 Sergey Naumtsev, who was sentenced in 2014 to life imprisonment for the rape and murder of a 15-year-old girl, appealed to the Constitutional Court of the Republic of Kazakhstan with a demand to recognize as unconstitutional subparagraph 3, paragraph 1-1 of Article 14 of the Law on Mass Media, which allows publishing a photo of a person without his consent, if it is done in order to protect the constitutional order, public order, human rights and freedoms, health and morals of the population.
The Constitutional Court did not find any contradictions with the basic law of the country and recognized the right of the mass media not to ask the criminal's permission to publish his photo.
The same logic was followed by the Aktobe City Court, which on September 21, 2022 denied Naumtsev's claim to protect the right to his own image. In 2024, Naumtsev filed a lawsuit against Ak Zhaiyk newspaper, which reprinted the Diapazon article. And the judge of the Atyrau City Court Zhasur Momynzhanov satisfied this claim, ignoring the ruling of the Constitutional Court, and the Supreme Court's ruling of January 15, 2016 No 1 “On the right of access to justice and the powers of the Supreme Court of the Republic of Kazakhstan to review judicial acts”, and p3.art 14 of the Law of the Republic of Kazakhstan “On Mass Media”, and art.9 of the Law of the Republic of Kazakhstan “On Personal Data and their Protection”
Case of Ak Zhaiyk newspaper
In 2013, Sergey Naumtsev raped and murdered a 15-year-old schoolgirl in Aktobe, which was published in the local newspaper “Diapazon”. This publication was also reprinted by the Atyrau newspaper Ak Zhaiyk. In 2014, the rapist and murderer Naumtsev was sentenced by the court to life imprisonment.
In 2022, Naumtsev filed a lawsuit against the newspaper Diapazon to protect his right to his own image, as the newspaper had illustrated the above publication with a photograph without his consent.
By the decision of the Aktobe City Court dated 21.09.2022, Naumtsev's claim was denied, because in accordance with subparagraph 3, paragraph 1-1, Article 14 of the Law “On Mass Media” the consent of the person depicted is not required if the publication is carried out for the protection of the constitutional order, protection of public order, human rights and freedoms, health and morals of the population.
It is precisely this legal provision that journalists rely on when publishing images of various offenders, who, naturally, would never voluntarily give their consent for such publication, considering the shame and public condemnation they face for their actions. This rule is crucial for society, which consciously limits the offender's right to their own image. It aims to deter potential offenders not only through court-imposed punishment but also through moral condemnation from the public, who should know exactly who committed the offense. This is why, for instance, the Supreme Court publishes judicial rulings without concealing the names of offenders. Such disclosure of information is necessary to prevent future offenses, which may be deterred by the fear of public shame across the nation. This is entirely normal.
In 2023, Naumtsev filed an appeal with the Constitutional Court, requesting that subparagraph 3, paragraph 1-1, Article 14 of the Law on Mass Media be declared unconstitutional. By the decision of the Constitutional Court dated April 21, 2023, No. 11, this provision of the Law on Mass Media was upheld as constitutional.
Nevertheless, in 2024, Naumtsev once again filed a lawsuit concerning the 2013 publication, again seeking to protect his right to his own image, which was published without his consent, this time targeting the Atyrau-based newspaper Ak Zhaiyk as the defendant.
By the decision of the Atyrau City Court on July 18, 2024, Naumtsev's lawsuit against the owner of the newspaper Ak Zhaiyk was upheld. The judge ruled that the rapist and murderer experienced moral suffering due to the publication of his image without consent, valuing this suffering at 30,000 tenge.
Situation Analysis
Judge Zhasur Momynzhanov of the Atyrau City Court attempted to circumvent the aforementioned provision of the Law on Mass Media by applying the Law on Personal Data and Their Protection, which states that the collection, processing, and dissemination of personal data is permitted only with the consent of the data subject. However, the Atyrau judge inexplicably chose not to invoke Article 9 of the Law “on Personal Data and Their Protection, which provides journalists and media with an exception to this general rule.
He also ignored the Constitutional Court's ruling, which clearly states:
“The comparison of the examined subparagraph with the conditions of paragraph 1 of Article 39 of the Constitution shows that the restriction:
is established by law;
can be considered necessary as it meets the urgent needs of the state and society in specific situations. These needs may prevail over the interests of the individual concerning non-interference in their private life, the preservation of personal and family secrets (for example, in search operations, locating missing persons, identifying victims of offenses, etc.). The issues of balancing the right to privacy (including the right to one's image) and the public need for interference in a person's private life should be taken into account when assessing the permissibility of such interference in the process of law enforcement;
pursues constitutionally recognized goals: the protection of the constitutional order, the maintenance of public order, human rights and freedoms, health, and public morality;
is proportionate.
The stated objectives can be achieved through the discussed restriction (dissemination of an image without the individual's consent), which is not excessive. The public good resulting from the limitation in a specific situation may outweigh the harm it causes.
The objectives of the exceptions (restrictions) provided for in subparagraph 3) of paragraph 1-1 of Article 14 of the Law on Mass Media literally coincide with the targeted provisions of the restrictions set forth in paragraph 1 of Article 39 of the Constitution, indicating adherence to a constitutional approach to the limitations of rights and freedoms in this case”.
In 2022, the Aktobe City Court denied Naumtsev's claim to protect his right to his own image based on the Law on Mass Media. In 2024, however, the Atyrau City Court upheld a nearly identical claim based on the Law on Personal Data and Their Protection, seemingly disregarding the Supreme Court's ruling, which states that “the achievement of uniformity in judicial practice is conditioned by the tasks of ensuring legality and protecting the constitutional rights and freedoms of individuals and citizens”.
Recommendations of the “Adil Soz”
In accordance with subparagraph 3) of part 6 of Article 438 of the Civil Procedure Code, a violation of the uniform application of legal norms by the courts leads to the reconsideration of the judicial act in cassation. The International Foundation for Protection of Freedom of Speech “Adil Soz” hopes that the Atyrau Regional Court will rectify the error made when reviewing the case in the appellate instance and restore legality and uniform application of laws across the Republic of Kazakhstan.
