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Women’s human rights defender faces defamation charges in Kazakhstan

Dina Smailova, head of NeMolchi (“Do Not be Silent” in Russian) Foundation, faces criminal charges for defamation, with the first hearing taking place on Monday 27 January. She has been litigating the “Talgo” rape case in Kazakhstan, which has received much public attention.

The “Talgo” rape case

In November 2018, a 35-year-old woman was traveling back from a scientific conference on the Talgo train from the capital Nur Sultan to Aktobe. Two train attendants beat and raped her. 

Dina Smailova represented the survivor, assisting her to access justice and advocating for the rapists to be charged with gang rape. Initially, the two rapists were only sentenced to two and a half years in prison, being charged with rape rather than gang rape. After public outcry, supported by NeMolchi, a second investigation proved the attack was gang rape. The rapists’ sentences were extended to five years. 

Kazakh blogger asks “which side is lying?”

Tanirbergen Berdongarov, a Kazakh blogger and former parliamentarian, shared a video of the parents of one of the rapists revealing the survivor’s personal information. The parents criticized the survivor and slandered her stating that she harassed the train attendants herself and then had been extorting money from the rapists’ families. Following the verdict, Berdongarov conducted a survey aimed at casting doubt on the court’s decision and the investigation. The survey asked his audience: “Which side is lying?”. A third of respondents said that the woman is lying.   

Do not be silent 

In response to Berdongarov’s statement, Dina Smailova wrote that he had “reached the bottom”. This offended him, and he sued the lawyer for defamation. She faces a fine of up to 5 million tenge (13 thousand US dollars) and two years imprisonment. She may also be required to compensate Berdongarov for “moral damages” in case of conviction. 

The legal framework that allows criminal charges for defamation violates the right to freedom of expression as guaranteed under Art. 19 of the International Covenant on Civil and Political Rights (ICCPR) that Kazakhstan is a party of. Additionally, the UN Resolution on women human rights defenders (2014, A/RES/68/181) calls upon states to ensure that the promotion and protection of human rights are not criminalized.

NeMolchi Foundation has been advocating for changes in the Criminal Code related to sexual crimes which are important in paving the way for greater access to justice for survivors of sexual violence. Following a nationwide conversation sparked in part by the “Talgo” case, these changes came into force in January 2020.

It takes great courage for victims to report

It is not easy for victims to report rape and globally conviction rates are very low. Victim-blaming makes many women fear they won’t be believed and reinforces stereotypes that influence the general population, legislators and law enforcement personnel among others which negatively affects access to justice for crimes of violence against women. In this year of review of the Beijing Platform for Action Equality Now calls on all governments, including the government of Kazakhstan, to engage in public campaigns to “promote a balanced and non-stereotyped portrayal of women in the media“, including social media to ensure the voices of women survivors of violence and women’s rights defenders are not being silenced and that they can access justice in a system that is fair and impartial.

In addition, Equality Now stands with Dina Smailova and calls for the defamation charges against her to be immediately dropped. 

UPDATE: On March 6th, 2020 Dina Smailova won the case, and is no longer facing criminal charges for defamation. She now as the right to sue Berdongar to cover her legal expenses. Equality Now welcomes the court’s decision.

The law should never be used in an attempt to silence those who speak up about their own sexual assault or speak out in defense of others.

Women’s rights defenders will not be silenced.