Court cases on criminal defamation against journalists
2006/11/28
CASE STUDIES
Court case: G.Dashrentsen
G.Dashtseren
Newspaper “Deedsiin khureelen”
Political reporter G.Dashtseren, General chief of newspaper “Deedsiin khureelen”, was found guilty to crimes of slander (Article 110, Criminal law) and defamation by means of mass media (Article 111, Criminal law) of G.Purevbat, a Buddhist Lama, because of his published article “Movement of black spot by N.Enkhbayar in the state of Mongolia”, (#31 (449) newspaper “Deedsiin khureelen” on October, 2005). Thus, the court of Bayanzurkh district charged him to pay a fine of 2 million 167 thousand 500 tugrugs on June 14, 2006.
However, the journalist G.Dashtseren was freed from punishment after Article 4.4, the Law of Amnesty, was adopted by the State Great Khural in accordance with the eighth centennial anniversary of the establishment of Great Mongolia on June 23, 2006.
In the journalist’s article, Purevbat’s honor and dignity was humiliated:
“After N.Enkhbayar was elected President, he granted the rank of Honored Lama to showmaker Lama Purevbat. Cases of corruption that might be related to the N.Enkhbayar were revealed by newspapers and televisions. Showmaker Lama Purevbat achieved merits. This is because Purevtat participated at his election, had his prestige enhanced to a living God and declared all evidences against N. Enkhbayar as defamation. Therefore he became the first Honored Lama. Also another great merit of Purevbat was the demolition of historical evidence of mass destruction. Therefore, the skulls of the hundreds of Lamas who were murdered and found in a pile at Tasgan, and stood as a witness of the communist regime that slaughtered them, are not to be found. Historian N said that the historical evidence of the horrific massacre was destroyed because N.Enkhbayar said, “to not destroy these dead bodies and to not build a pagoda badly influences the party’s reputation, and also my honor” after he told him to build a museum by their head bones and to determine their identities using the cell research. That is second reason why he became Honored Lama of Purevbat. Actually, under religious customs, a Lama’s title and ranks are granted by the learned Lama. However, he became the president’s counsel and he received this rank without the granting of Choi khamba as a learned Lama…”
The above was written in a “Historical brief of ‘Boner’ Lama Purevbat, who was granted this rank that has not yet been given to the Learned Lama”.
According to the reason mentioned beforehand, advocate D.Orosoo of Purevbat filed a suit to restore the honor, dignity and official authority to the Court of Bayanzurkh district on November 10, 2005. Also he added a claim on December 20, 2005 that demanded 30 million tugrugs for the humiliation of G.Purevbat.
After that, the Godlike Lama G.Purevbat made a complaint that “I consider this article as a crime of slander and defamation” to the police office on January 11, 2006. He wrote that “I consider it as a crime on slander to my dignity and works against me. I am a normal Lama, but I was related to the political purpose after the humiliation of the dignity of N.Enkhbayar, president of Mongolia.
a) The quote that “Purevtat participated at his election, had his prestige enhanced to a living God and declared all evidence against N.Enkhbayar as defamation. Thereby he became the first Honored Lama” humiliated my honor and dignity. Thus, it must be examined and determined if I was granted the honored rank because of praising anyone, and if I didn’t do anything to be esteemed by the state.
b) He complained that it was absolutely unfounded defamation that: “Also another great merit of Purevbat was the demolition of historical evidence of mass destruction. Therefore, the skulls of the hundreds of Lamas who were murdered and found in a pile at Tasgan, and stood as a witness of the communist regime that slaughtered them, are not to be found. Historian N said that the historical evidence of the horrific massacre was destroyed because N.Enkhbayar said, “to not destroy these dead bodies and to not build a pagoda badly influences the party’s reputation, and also my honor” after he told him to build a museum by their head bones and to determine their identities using the cell research.” He complained that his defamation that Purevbat destroyed historical evidences by order of N.Enkhbayar, has to examined objectively.
On page 76 of the case file, the first explanation of journalist G.Dashtseren on January 27, 2006 was that “it is true. I have written a personal conclusion on the great victimization in 1937 in accordance with the freedom of expression. But it is not defamatory action with deliberate purpose and not encroaching on the official dignity and honor of Godlike Lama Purevbat. It is just a political article. I am ready to apologize officially through the newspaper “Deedsiin khureelen”, if my article encroached on and defamed the honor of Godlike Lama Purevbat. For me, I have never met Godlike Lama G.Purevbat nor known him. I don’t feel any hostility towards him. I respect him as a good young painter and creator of art.” This explanation was repeated and the journalist apologized during this statement of being suspected and accused.
First of all, this case preceded the “Slander” Article 110.1, Criminal law, on February 1, 2006. Therefore, he was accused of committing the crime by the “defamation” Article 111.2, Criminal law, on February 22, 2006. After that, the article 110.1 (Slander), Criminal law, on April 13, 2006 was added to his punishment.
For this reason, the Agency conducting an inquiry sent an official paper #291-82 that requested the definition of “Boner” and its means to the Institute of language and literature of Scientific Academy on February 23, 2006. The reply of February 26, 2006 said that “…catcher of bones is a sign of respect but boner is used in popular speech. … Though boner has multilateral meanings, there are not any defamatory meanings and ideas.”
Advocate D.Orosoo took this interpretation of “Boner” from the Institute of Language and Literature on March 22, 2003 and this interpretation was entered in the case file. But it was an ordinary request, not an official expert conclusion.
According to the request on the appointment of experts under the Articles 155, 157, and 162 of the Criminal procedural law, Linguistics Sc.D Sh.Choimaa, L.Khurelbaatar, M.Bazarragchaa were appointed by the Institute of Language and Literature of Scientific Academy and Council for state language on March 27, 2006. Hereby, on April 6, 2006, the appointed experts made the conclusion that “Boner” had an insulting meaning in this article.
The Court of Bayanzurkh district discussed this case by judicial session on June 14, 2006 and determined the settled part of Punishment decision as “…According to the evidences collected in the case file and re-investigated in judicial discussion, it is proved clearly that journalist committed the crime on defamation by mass media that “Historian N said historical evidences of massacre were destroyed by the order of N.Enkhbayar”, and committed a crime with the insult “Boner” Lama with mass media. It is correct to accuse him of committing a minor or less serious crime for the first time; give sincere repentance; and apologize to the victim G.Purevbat; etc”.
In the Article 111, Criminal law, a crime of defamation is formulated as a “Spreading of knowingly false fabrications defaming another individual …” Thus, this case of “…defaming deliberately someone’s honor and dignity…” must be committed as a direct deliberate form of guilt as in Article 26.2, Criminal law. A direct deliberate form of guilty is determined “if the culprit, while being aware and having preliminary knowledge of the socially dangerous character of one’s act or omission …”
For the conclusion mentioned beforehand, it is doubtful that the case against journalist G.Dashtseren is a crime of Defamation of Criminal law. In other words, it would be necessary to prove in the article of G.Dashtseren that he deliberately attacked the reputation of G.Purevbat, in order to consider it as a defamatory action and a direct deliberate form of guilt. Hereby, it is wrong that the accusation of defamation applies to the article.
But in the cooperative declaration between the UN Special Rapporteur on Freedom of Opinion and Expression against accusations of crimes on slander and defamation by criminal law in democratic countries, the OSCE representative on Freedom of the Media and the OAS special rapporteur on Freedom of expression states:
“… provisions against defamation shall be removed from the criminal law and it shall be regulated by the civil code”, “Anyone shall not be accused when complaint requirement of defamation is doubtful and evidences are insufficient“, “The committing of defamation shall be not accused and allowed by criminal serious punishment and tougher sentences such as imprisonment, suspended sentence, suspension of freedom of expression by mass media and suspension of journalist position”. Further, Mongolia is addressing these matters to change its legislations according to the above requirements.
APPENDIX # 2.1
Court case: D.Ganhuyag
Defendant: D.Gankhuyag
Victim: O.Chuluunbaatar (President of Mongolian Bank)
Related people: N.Enkhbayar (President of Mongolia) O.Tsolmon (wife of N.Enkhbayar)
Dates of case commencement: May 2, 2005.
Dates of case decision: July 8, 2006.
Decision act: Punishment decision #60 A
Court jurisdiction: Court of Chingeltei district
Case number: 20539374
Crime charged: Defamation, Article 111.2, Criminal Law
Journalist D.Gankhuyag was considered guilty to the crime on spreading libel to the public by means of mass media (Article 111.2, Criminal law) with the purpose of disgracing, because of publishing his article “Great debt …, 8 million $ … O.Tsolmon?!”, which related to the matter on the great debt paid by Mongolia to Russia, newspaper “Mongol times” #8 on March, 2005. Thus, he was charged a fine of 3 million tugrugs, equal to 75 the amount of minimum salary, on June 14, 2006.
However, the journalist D.Gankhuyag was freed from punishment based on Article 4.4, of the Law of Amnesty adopted by the State Great Khural on June 23, 2006.
It was written in this article, that “Mongolian bank transferred 8 million dollars to USA, when payment of great debt was paid … The most unusual and doubtful fact is that O. Tsolmon, the wife of the former prime minister, speaker of the State Great Khural N.Enkhbayar, was listed among people’s names that took this 8 million dollars for their own.”
The complaint by O.Chuluunbaatar, president of Mongolian Bank, instigated a criminal case on May 2, 2005. In this complaint: “it doesn’t agree with actual facts. Also, it spreads libel of my honor and dignity to the public”. Thus, the case was determined as a crime of “defamation” by the prosecutor and was dismissed by the Court of Chingeltei district based on lacking criminal composition. The court found the verdict to be not guilty.
Because of an objection by the prosecutor, this case was appealed in the Appealing court and the verdict of non-guilty became invalid. Hereby, this case was returned to a re-investigation in order to be decided by the original jurisdiction procedure. After the re-investigation by the Agency conducting the inquiry, the prosecutor made a punishment conclusion and submitted it to the court of the Chingeltei district.
So, the Court of Chingeltei district decided this case by the original jurisdiction procedure and made the decision (a fine of 3 million tugrugs), as mentioned beforehand, on July 8, 2006.
Defendant D.Gankhuyag stated in the judicial discussion: “I have written research works with related evidence for about 10 years. I wrote an article on Mrs. O.Tsolmon in the newspaper “Mongol times” # 8, but I didn’t write on matters related to O.Chuluunbat. … High officials, including members of the State Great Khural and ministers sent inevitably 8 million dollars. But O.Chuluunbaatar had been claiming for a year and 3 months that this was not true. As a researcher, I revealed a financial conflict from an earlier time until now. There are no police and tax investigators working on that. That there is no disclosure on how the great was paid, made me sensitive.” Thus, the case decision took several stages in court and took a lot of time, but judges and prosecutors didn’t consider that this matter was related to the public interests.
In the statement by O.Chuluunbaatar: “… writing that the Mongolian Bank transferred 8 million dollars to the USA during the payment of the great debt to Russia in the article, insults not only my dignity, but also the Mongolian Bank. Hereby, I applied to the legal organizations. This is defamation. The Mongolian Bank didn’t transfer 8 million dollars to the USA, also the Mongolian Bank doesn’t serve individuals. An international world-famous audit organization takes control and makes conclusions about the financial report of the Mongolian Bank every year. Eris and Young Company audited the bank and made final reports during the payment of great debt.”
In conclusion, the complaint of the president of the Mongolian Bank that “the dignity of not only me but also the Mongolian Bank was compromised in the world arena” wasn’t proved, but this article included the name of former Prime Minister N.Enkhbayar and his wife O.Tsolmon.
1. There was another complaint for criticizing other people.
2. Internationally, it is wrong that public service organizations and their officials are considered as victims of crimes of defamation.
In the statement of witness B.L, the head of department for media, technology, registration and account of the Mongolian Bank, it said that: “The Mongolian Bank doesn’t provide service for legal entities and individuals because it is not an Exchange Bank. There are some operations of studying assistance for students in foreign countries through the state studying fund”.
This statement violates the statement that it doesn’t provide service for individuals. Article 45.1 of the Criminal procedural law is formulated as, “A person who knows significant circumstances of a crime and is not involved in the crime shall be deemed to be a witness.”
In the statement of witness T.N, a legal specialist of the Mongolian Bank,: “negative effects of this false article insult not only an individual, but is also harmful to the interests of Mongolia and its monetary policy”.
But these witnesses work under the direct leadership of the president of the Mongolian Bank. Also how citizen’s tax payments are spent has to be open. And this information should be raised to the public’s attention.
During the criminal procedure, the investigator and the inquiry officer were required to reveal sources and were asked several times, “where did you obtain this information from?” This question is in the case file.
During the judicial discussion, the prosecutor asked: “Tell about other evidence? Say their names?” Gankhuyag replied: “A researcher doesn’t say the informer’s name… The police and the prosecutor didn’t receive my petition even though I sent it more than once”.
In the note of the defendant’s questioning on April 26, 2006, D.Gankhuyag replied: “the safety of the information source is not provided…”
During the judicial discussion on July 8, 2006, the prosecutor said: “D.Gankhuyag has to reveal his sources himself.” D.Gankhuyag replied: “Bring and check several other newspapers yourself.”
And in objection the prosecutor said : “he didn’t reveal the information source…”.
This violates Article 16.2 of the Criminal procedural law: “The Inquiry officer, investigator, prosecutor and court shall not have the right to demand the suspect, accused or defendant to prove their innocence themselves.”
Journalist D.Gankhuyag submitted a petition for justification in a fair trial to the General Judge twice. In the petition on January 18, 2006, D.Gankhuyag said: “I am considered a Prisoner of Conscience. Some lawyers have been trying to separate me from society for a year under the orders of their higher officials’. I have just disclosed serious information of many strange uncertainties related to the payment of the great debt to the public” (Case file page 147).
Thus, he received the response that: “The courts that implement judicial power were established according to the background and principles of the Constitution of Mongolia and other legislations, so they are “fair trials” and it is correct to consider the Court of Chingeltei district as a fair trial”.
Also, the questioning note of defendant D.Gankhuyag on May 10, 2005 stated: “in addition, when the preliminary investigation hadn’t yet finished, Ts.Nyamdorj, minister of the Justice and Home affairs, has been saying precisely my statement. I am surprised at that.” (Case file 29-page). In the note of a judicial discussion attached in case documents on March 23, 2006, Advocate S.Narangerel said: “the court of Mongolia needs to show its independence and impartiality. We have information that Altantuya was examining the judge’s personal paper in the office of the President after the verdict of not guilty in the original jurisdiction. This is true information. We have doubts that the Appeal court made a fair decision, because of pressure from higher officials.”
The right to a fair trial is guaranteed in Article 16.14, of the Constitution of Mongolia. It is allowed that independence of the court wasn’t provided if it is proved that a judge’s personal paper was examined. Also it is doubtful whether secrecy of information attached in the case file was kept during the investigation.
In comparative summarization between national and international rules based on the research of case files:
One. The crime composition, especially the subjective element of direct deliberate form of guilt was not determined precisely.
The global campaign for free expression, Article 19’s 4th principle, “Defining defamation: Principles on Freedom of Expression and Protection of Reputation”: “Anyone shall not be accused by the law against defamation when complaint requirement of defamation is doubtful and evidences are insufficient”. A Trial instigated against humiliation of honor shall be decided not more than a year except in special circumstances. The court shall control an appropriate and quick period of judicial procedure against humiliation of honor in order to eliminate the negative effects to the freedom of expression . These principles were violated in this case.
Two. Generally, the protection of an individual’s dignity is considered as an individual interest in many countries. Consideration of defamation as a crime is not important to protect someone’s dignity and it eliminates freedom of expression. Thus, it is not recognized. Also this fact violates the international standard that “Individual and entity have the right to claim on defamation, but this right is not related to the public organization’s officials ”.
The European Court of Human rights considers that it is important to have the possibility to criticize freely the Government and public organizations in a democratic society. Therefore, public officials have a special position, whose being in public attention is related to their functions in society. So they have to be more patient than others for criticism. It is very important to discuss and criticize clearly someone on matters related to the freedom of expression, free flow of information and public interests. This plays an important role and provides not only individual development, dignity, creativity, but also social welfare, development and others rights and freedoms in a democratic society.
Three. it emphasizes that “Freedom of expression, free flow of information and ideological matters are still an international problem. It is expressed by two forms of alarm that journalists and other people are damaged by censure, defamation, and humiliation by laws that restrict freedom of expression”. Also, the European court warned that “member states have to define more precisely and change their laws against defamation in pursuit of international obligations in order not to restrict freedom of expression”.
Under this principle, the provision against defamation shall be removed from the criminal law and it shall be regulated by a civil code. A country with criminal law against defamation needs to implement this principle.
Four. Principle 9 says that: A published article shall be protected if it is related to public matters. Public matters are all matters related to the public’s legal interests. For example: “three authority” of state, public officials, public service, political and social interests, and economic and cultural matters. So it is vital to protect secret sources and informers of this information. Information on Great debt shall be protected, because it is a public matter.
Five. Also the above criminal procedure violates Principle 3 by Article 19 that “Journalists and anyone that keeps the reliability of source secrecy have the right to spread information and classify sources of information according to public interest. This right shall not be restricted and under no circumstances be related to the crime on defamation. No one shall be damaged when he or she refuses to disclose information source to the crime on defamation under this principle” and under article 16.14 of the Constitution “Compelling to testify against himself or herself shall be prohibited”.
Six. A fair trial is a material and procedural right. Everyone has the right to an effective protection by the civil and criminal tribunal recognized by requirements at the international level. This tribunal secures the following criteria:
- To take evidence
- To receive justification by an impartial and independent judge
- That the judicial decision meets standards of international impartial court .
Also Article 14 of the International Covenant on Civil and Political Rights: “…everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law”. And Article 17 of the Rome Statute of International Criminal Court states that issues of admissibility by an International criminal court are determined, meaning that everyone shall be provided to justify themselves with a fair trial.
Thus, the advocate’s statement that “seeing a judge’s personal paper” attached in the case file wasn’t checked in order to provide the right to a fair trial in the Article 16.14 of the Constitution.
Court case: G.Dashrentsen
G.Dashtseren
Newspaper “Deedsiin khureelen”
Political reporter G.Dashtseren, General chief of newspaper “Deedsiin khureelen”, was found guilty to crimes of slander (Article 110, Criminal law) and defamation by means of mass media (Article 111, Criminal law) of G.Purevbat, a Buddhist Lama, because of his published article “Movement of black spot by N.Enkhbayar in the state of Mongolia”, (#31 (449) newspaper “Deedsiin khureelen” on October, 2005). Thus, the court of Bayanzurkh district charged him to pay a fine of 2 million 167 thousand 500 tugrugs on June 14, 2006.
However, the journalist G.Dashtseren was freed from punishment after Article 4.4, the Law of Amnesty, was adopted by the State Great Khural in accordance with the eighth centennial anniversary of the establishment of Great Mongolia on June 23, 2006.
In the journalist’s article, Purevbat’s honor and dignity was humiliated:
“After N.Enkhbayar was elected President, he granted the rank of Honored Lama to showmaker Lama Purevbat. Cases of corruption that might be related to the N.Enkhbayar were revealed by newspapers and televisions. Showmaker Lama Purevbat achieved merits. This is because Purevtat participated at his election, had his prestige enhanced to a living God and declared all evidences against N. Enkhbayar as defamation. Therefore he became the first Honored Lama. Also another great merit of Purevbat was the demolition of historical evidence of mass destruction. Therefore, the skulls of the hundreds of Lamas who were murdered and found in a pile at Tasgan, and stood as a witness of the communist regime that slaughtered them, are not to be found. Historian N said that the historical evidence of the horrific massacre was destroyed because N.Enkhbayar said, “to not destroy these dead bodies and to not build a pagoda badly influences the party’s reputation, and also my honor” after he told him to build a museum by their head bones and to determine their identities using the cell research. That is second reason why he became Honored Lama of Purevbat. Actually, under religious customs, a Lama’s title and ranks are granted by the learned Lama. However, he became the president’s counsel and he received this rank without the granting of Choi khamba as a learned Lama…”
The above was written in a “Historical brief of ‘Boner’ Lama Purevbat, who was granted this rank that has not yet been given to the Learned Lama”.
According to the reason mentioned beforehand, advocate D.Orosoo of Purevbat filed a suit to restore the honor, dignity and official authority to the Court of Bayanzurkh district on November 10, 2005. Also he added a claim on December 20, 2005 that demanded 30 million tugrugs for the humiliation of G.Purevbat.
After that, the Godlike Lama G.Purevbat made a complaint that “I consider this article as a crime of slander and defamation” to the police office on January 11, 2006. He wrote that “I consider it as a crime on slander to my dignity and works against me. I am a normal Lama, but I was related to the political purpose after the humiliation of the dignity of N.Enkhbayar, president of Mongolia.
a) The quote that “Purevtat participated at his election, had his prestige enhanced to a living God and declared all evidence against N.Enkhbayar as defamation. Thereby he became the first Honored Lama” humiliated my honor and dignity. Thus, it must be examined and determined if I was granted the honored rank because of praising anyone, and if I didn’t do anything to be esteemed by the state.
b) He complained that it was absolutely unfounded defamation that: “Also another great merit of Purevbat was the demolition of historical evidence of mass destruction. Therefore, the skulls of the hundreds of Lamas who were murdered and found in a pile at Tasgan, and stood as a witness of the communist regime that slaughtered them, are not to be found. Historian N said that the historical evidence of the horrific massacre was destroyed because N.Enkhbayar said, “to not destroy these dead bodies and to not build a pagoda badly influences the party’s reputation, and also my honor” after he told him to build a museum by their head bones and to determine their identities using the cell research.” He complained that his defamation that Purevbat destroyed historical evidences by order of N.Enkhbayar, has to examined objectively.
On page 76 of the case file, the first explanation of journalist G.Dashtseren on January 27, 2006 was that “it is true. I have written a personal conclusion on the great victimization in 1937 in accordance with the freedom of expression. But it is not defamatory action with deliberate purpose and not encroaching on the official dignity and honor of Godlike Lama Purevbat. It is just a political article. I am ready to apologize officially through the newspaper “Deedsiin khureelen”, if my article encroached on and defamed the honor of Godlike Lama Purevbat. For me, I have never met Godlike Lama G.Purevbat nor known him. I don’t feel any hostility towards him. I respect him as a good young painter and creator of art.” This explanation was repeated and the journalist apologized during this statement of being suspected and accused.
First of all, this case preceded the “Slander” Article 110.1, Criminal law, on February 1, 2006. Therefore, he was accused of committing the crime by the “defamation” Article 111.2, Criminal law, on February 22, 2006. After that, the article 110.1 (Slander), Criminal law, on April 13, 2006 was added to his punishment.
For this reason, the Agency conducting an inquiry sent an official paper #291-82 that requested the definition of “Boner” and its means to the Institute of language and literature of Scientific Academy on February 23, 2006. The reply of February 26, 2006 said that “…catcher of bones is a sign of respect but boner is used in popular speech. … Though boner has multilateral meanings, there are not any defamatory meanings and ideas.”
Advocate D.Orosoo took this interpretation of “Boner” from the Institute of Language and Literature on March 22, 2003 and this interpretation was entered in the case file. But it was an ordinary request, not an official expert conclusion.
According to the request on the appointment of experts under the Articles 155, 157, and 162 of the Criminal procedural law, Linguistics Sc.D Sh.Choimaa, L.Khurelbaatar, M.Bazarragchaa were appointed by the Institute of Language and Literature of Scientific Academy and Council for state language on March 27, 2006. Hereby, on April 6, 2006, the appointed experts made the conclusion that “Boner” had an insulting meaning in this article.
The Court of Bayanzurkh district discussed this case by judicial session on June 14, 2006 and determined the settled part of Punishment decision as “…According to the evidences collected in the case file and re-investigated in judicial discussion, it is proved clearly that journalist committed the crime on defamation by mass media that “Historian N said historical evidences of massacre were destroyed by the order of N.Enkhbayar”, and committed a crime with the insult “Boner” Lama with mass media. It is correct to accuse him of committing a minor or less serious crime for the first time; give sincere repentance; and apologize to the victim G.Purevbat; etc”.
In the Article 111, Criminal law, a crime of defamation is formulated as a “Spreading of knowingly false fabrications defaming another individual …” Thus, this case of “…defaming deliberately someone’s honor and dignity…” must be committed as a direct deliberate form of guilt as in Article 26.2, Criminal law. A direct deliberate form of guilty is determined “if the culprit, while being aware and having preliminary knowledge of the socially dangerous character of one’s act or omission …”
For the conclusion mentioned beforehand, it is doubtful that the case against journalist G.Dashtseren is a crime of Defamation of Criminal law. In other words, it would be necessary to prove in the article of G.Dashtseren that he deliberately attacked the reputation of G.Purevbat, in order to consider it as a defamatory action and a direct deliberate form of guilt. Hereby, it is wrong that the accusation of defamation applies to the article.
But in the cooperative declaration between the UN Special Rapporteur on Freedom of Opinion and Expression against accusations of crimes on slander and defamation by criminal law in democratic countries, the OSCE representative on Freedom of the Media and the OAS special rapporteur on Freedom of expression states:
“… provisions against defamation shall be removed from the criminal law and it shall be regulated by the civil code”, “Anyone shall not be accused when complaint requirement of defamation is doubtful and evidences are insufficient“, “The committing of defamation shall be not accused and allowed by criminal serious punishment and tougher sentences such as imprisonment, suspended sentence, suspension of freedom of expression by mass media and suspension of journalist position”. Further, Mongolia is addressing these matters to change its legislations according to the above requirements.
APPENDIX # 2.1
Court case: D.Ganhuyag
Defendant: D.Gankhuyag
Victim: O.Chuluunbaatar (President of Mongolian Bank)
Related people: N.Enkhbayar (President of Mongolia) O.Tsolmon (wife of N.Enkhbayar)
Dates of case commencement: May 2, 2005.
Dates of case decision: July 8, 2006.
Decision act: Punishment decision #60 A
Court jurisdiction: Court of Chingeltei district
Case number: 20539374
Crime charged: Defamation, Article 111.2, Criminal Law
Journalist D.Gankhuyag was considered guilty to the crime on spreading libel to the public by means of mass media (Article 111.2, Criminal law) with the purpose of disgracing, because of publishing his article “Great debt …, 8 million $ … O.Tsolmon?!”, which related to the matter on the great debt paid by Mongolia to Russia, newspaper “Mongol times” #8 on March, 2005. Thus, he was charged a fine of 3 million tugrugs, equal to 75 the amount of minimum salary, on June 14, 2006.
However, the journalist D.Gankhuyag was freed from punishment based on Article 4.4, of the Law of Amnesty adopted by the State Great Khural on June 23, 2006.
It was written in this article, that “Mongolian bank transferred 8 million dollars to USA, when payment of great debt was paid … The most unusual and doubtful fact is that O. Tsolmon, the wife of the former prime minister, speaker of the State Great Khural N.Enkhbayar, was listed among people’s names that took this 8 million dollars for their own.”
The complaint by O.Chuluunbaatar, president of Mongolian Bank, instigated a criminal case on May 2, 2005. In this complaint: “it doesn’t agree with actual facts. Also, it spreads libel of my honor and dignity to the public”. Thus, the case was determined as a crime of “defamation” by the prosecutor and was dismissed by the Court of Chingeltei district based on lacking criminal composition. The court found the verdict to be not guilty.
Because of an objection by the prosecutor, this case was appealed in the Appealing court and the verdict of non-guilty became invalid. Hereby, this case was returned to a re-investigation in order to be decided by the original jurisdiction procedure. After the re-investigation by the Agency conducting the inquiry, the prosecutor made a punishment conclusion and submitted it to the court of the Chingeltei district.
So, the Court of Chingeltei district decided this case by the original jurisdiction procedure and made the decision (a fine of 3 million tugrugs), as mentioned beforehand, on July 8, 2006.
Defendant D.Gankhuyag stated in the judicial discussion: “I have written research works with related evidence for about 10 years. I wrote an article on Mrs. O.Tsolmon in the newspaper “Mongol times” # 8, but I didn’t write on matters related to O.Chuluunbat. … High officials, including members of the State Great Khural and ministers sent inevitably 8 million dollars. But O.Chuluunbaatar had been claiming for a year and 3 months that this was not true. As a researcher, I revealed a financial conflict from an earlier time until now. There are no police and tax investigators working on that. That there is no disclosure on how the great was paid, made me sensitive.” Thus, the case decision took several stages in court and took a lot of time, but judges and prosecutors didn’t consider that this matter was related to the public interests.
In the statement by O.Chuluunbaatar: “… writing that the Mongolian Bank transferred 8 million dollars to the USA during the payment of the great debt to Russia in the article, insults not only my dignity, but also the Mongolian Bank. Hereby, I applied to the legal organizations. This is defamation. The Mongolian Bank didn’t transfer 8 million dollars to the USA, also the Mongolian Bank doesn’t serve individuals. An international world-famous audit organization takes control and makes conclusions about the financial report of the Mongolian Bank every year. Eris and Young Company audited the bank and made final reports during the payment of great debt.”
In conclusion, the complaint of the president of the Mongolian Bank that “the dignity of not only me but also the Mongolian Bank was compromised in the world arena” wasn’t proved, but this article included the name of former Prime Minister N.Enkhbayar and his wife O.Tsolmon.
1. There was another complaint for criticizing other people.
2. Internationally, it is wrong that public service organizations and their officials are considered as victims of crimes of defamation.
In the statement of witness B.L, the head of department for media, technology, registration and account of the Mongolian Bank, it said that: “The Mongolian Bank doesn’t provide service for legal entities and individuals because it is not an Exchange Bank. There are some operations of studying assistance for students in foreign countries through the state studying fund”.
This statement violates the statement that it doesn’t provide service for individuals. Article 45.1 of the Criminal procedural law is formulated as, “A person who knows significant circumstances of a crime and is not involved in the crime shall be deemed to be a witness.”
In the statement of witness T.N, a legal specialist of the Mongolian Bank,: “negative effects of this false article insult not only an individual, but is also harmful to the interests of Mongolia and its monetary policy”.
But these witnesses work under the direct leadership of the president of the Mongolian Bank. Also how citizen’s tax payments are spent has to be open. And this information should be raised to the public’s attention.
During the criminal procedure, the investigator and the inquiry officer were required to reveal sources and were asked several times, “where did you obtain this information from?” This question is in the case file.
During the judicial discussion, the prosecutor asked: “Tell about other evidence? Say their names?” Gankhuyag replied: “A researcher doesn’t say the informer’s name… The police and the prosecutor didn’t receive my petition even though I sent it more than once”.
In the note of the defendant’s questioning on April 26, 2006, D.Gankhuyag replied: “the safety of the information source is not provided…”
During the judicial discussion on July 8, 2006, the prosecutor said: “D.Gankhuyag has to reveal his sources himself.” D.Gankhuyag replied: “Bring and check several other newspapers yourself.”
And in objection the prosecutor said : “he didn’t reveal the information source…”.
This violates Article 16.2 of the Criminal procedural law: “The Inquiry officer, investigator, prosecutor and court shall not have the right to demand the suspect, accused or defendant to prove their innocence themselves.”
Journalist D.Gankhuyag submitted a petition for justification in a fair trial to the General Judge twice. In the petition on January 18, 2006, D.Gankhuyag said: “I am considered a Prisoner of Conscience. Some lawyers have been trying to separate me from society for a year under the orders of their higher officials’. I have just disclosed serious information of many strange uncertainties related to the payment of the great debt to the public” (Case file page 147).
Thus, he received the response that: “The courts that implement judicial power were established according to the background and principles of the Constitution of Mongolia and other legislations, so they are “fair trials” and it is correct to consider the Court of Chingeltei district as a fair trial”.
Also, the questioning note of defendant D.Gankhuyag on May 10, 2005 stated: “in addition, when the preliminary investigation hadn’t yet finished, Ts.Nyamdorj, minister of the Justice and Home affairs, has been saying precisely my statement. I am surprised at that.” (Case file 29-page). In the note of a judicial discussion attached in case documents on March 23, 2006, Advocate S.Narangerel said: “the court of Mongolia needs to show its independence and impartiality. We have information that Altantuya was examining the judge’s personal paper in the office of the President after the verdict of not guilty in the original jurisdiction. This is true information. We have doubts that the Appeal court made a fair decision, because of pressure from higher officials.”
The right to a fair trial is guaranteed in Article 16.14, of the Constitution of Mongolia. It is allowed that independence of the court wasn’t provided if it is proved that a judge’s personal paper was examined. Also it is doubtful whether secrecy of information attached in the case file was kept during the investigation.
In comparative summarization between national and international rules based on the research of case files:
One. The crime composition, especially the subjective element of direct deliberate form of guilt was not determined precisely.
The global campaign for free expression, Article 19’s 4th principle, “Defining defamation: Principles on Freedom of Expression and Protection of Reputation”: “Anyone shall not be accused by the law against defamation when complaint requirement of defamation is doubtful and evidences are insufficient”. A Trial instigated against humiliation of honor shall be decided not more than a year except in special circumstances. The court shall control an appropriate and quick period of judicial procedure against humiliation of honor in order to eliminate the negative effects to the freedom of expression . These principles were violated in this case.
Two. Generally, the protection of an individual’s dignity is considered as an individual interest in many countries. Consideration of defamation as a crime is not important to protect someone’s dignity and it eliminates freedom of expression. Thus, it is not recognized. Also this fact violates the international standard that “Individual and entity have the right to claim on defamation, but this right is not related to the public organization’s officials ”.
The European Court of Human rights considers that it is important to have the possibility to criticize freely the Government and public organizations in a democratic society. Therefore, public officials have a special position, whose being in public attention is related to their functions in society. So they have to be more patient than others for criticism. It is very important to discuss and criticize clearly someone on matters related to the freedom of expression, free flow of information and public interests. This plays an important role and provides not only individual development, dignity, creativity, but also social welfare, development and others rights and freedoms in a democratic society.
Three. it emphasizes that “Freedom of expression, free flow of information and ideological matters are still an international problem. It is expressed by two forms of alarm that journalists and other people are damaged by censure, defamation, and humiliation by laws that restrict freedom of expression”. Also, the European court warned that “member states have to define more precisely and change their laws against defamation in pursuit of international obligations in order not to restrict freedom of expression”.
Under this principle, the provision against defamation shall be removed from the criminal law and it shall be regulated by a civil code. A country with criminal law against defamation needs to implement this principle.
Four. Principle 9 says that: A published article shall be protected if it is related to public matters. Public matters are all matters related to the public’s legal interests. For example: “three authority” of state, public officials, public service, political and social interests, and economic and cultural matters. So it is vital to protect secret sources and informers of this information. Information on Great debt shall be protected, because it is a public matter.
Five. Also the above criminal procedure violates Principle 3 by Article 19 that “Journalists and anyone that keeps the reliability of source secrecy have the right to spread information and classify sources of information according to public interest. This right shall not be restricted and under no circumstances be related to the crime on defamation. No one shall be damaged when he or she refuses to disclose information source to the crime on defamation under this principle” and under article 16.14 of the Constitution “Compelling to testify against himself or herself shall be prohibited”.
Six. A fair trial is a material and procedural right. Everyone has the right to an effective protection by the civil and criminal tribunal recognized by requirements at the international level. This tribunal secures the following criteria:
- To take evidence
- To receive justification by an impartial and independent judge
- That the judicial decision meets standards of international impartial court .
Also Article 14 of the International Covenant on Civil and Political Rights: “…everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law”. And Article 17 of the Rome Statute of International Criminal Court states that issues of admissibility by an International criminal court are determined, meaning that everyone shall be provided to justify themselves with a fair trial.
Thus, the advocate’s statement that “seeing a judge’s personal paper” attached in the case file wasn’t checked in order to provide the right to a fair trial in the Article 16.14 of the Constitution.