Gay smooch ad creators lose in court; situation of sexual minorities in Kazakhstan in spotlight

Specialized Interdistrict Administrative Court of Almaty has found the creators of the scandalous gay smooch ad guilty and ordered to pay a fine, Tengrinews correspondent reports.

The scandal revolves around the poster depicting Kazakh composer Kurmangazy Sagyrbayuly kissing Russian poet Alexander Pushkin. It was developed by ads agency Havas Worldwide Kazakhstan (legally going by the name LLC “Euro RSCG Kazakhstan”) and advertised a gay bar and club “Studio 69” located in Almaty at the intersection of the streets carrying the names of the two cultural figures. Not everyone in Kazakhstan has found this quibble funny.

Right after the poster was submitted for a creative ads contest Red Jolbors Fest, a special competition for Central Asian advertising agencies, it received negative attention from the public. Winning the third place in Outdoor Advertising category, Havas Worldwide Kazakhstan had also earned itself a headache.

The poster angered the public in Kazakhstan. An overwhelming majority of social media users in the country called for the creators of the poster to be punished by law.

Looks like some wishes come true. Judge Rauza Aliyeva has ordered the head of the ads agency Khamitzhanova Daria and the agency itself to pay fines in two separate cases - 129 640 tenge ($714) and 185 200 tenge ($1,020). The court cited a section of the Article 349 of the Administrative Offences Code of Kazakhstan - “Production, distribution, placement and use of advertising of the products (works and services) that are banned from advertising by laws of the Republic of Kazakhstan”.

The defense stated that the poster was never distributed as an advertisement and was not intended to be used as one, since it was created solely for the purposes of the competition. In addition, Khamitzhanova said that “Studio 69” did not order the poster and that it was someone named G. K. Bugubayeva who had started the dissemination of the poster on the Internet on her own accord.

Khamitzhanova’s lawyer Jokhar Utebekov declared that the Department of Internal Affairs of Almaty - that was the plaintiff in the case - only had the jurisdiction over media cases. Since the poster was never actually used as an advertisement and was not intended for public use, the case did not fall under the jurisdiction of this body, he said. The lawyer also noted that there was no law in Kazakhstan that would ban advertising clubs.

Chief expert of the Interior Policies Deparment of Almaty Akimat (municipal authorities) Khorlan Kurmanbek countered these arguments by saying that the poster depicting Kurmangazy and Pushkin kissing was offending the image of the great cultural figures and violated the generally accepted standards of morality and behaviour of the Kazakh society because it was depicting unconventional sexual relations that are unacceptable for the society and contrary to its moral values.

The judge decided that the guilt of Khamitzhanova and the ads agency was obvious. She based her decision on the definition of advertising in the Law of the Republic of Kazakhstan on Advertising (dated 19 December 2003 No. 508), on the definition of inappropriate advertising in the same law and Article 636 of the Administrative Code.

Advertising as defined by the Law on Advertising (Article 3) is “information distributed and placed in any form, by any means and intended for an indefinite number of persons and designed to generate and maintain the interest in an individual or legal entity, products, trademarks, works and services and encourage their selling”.

The judge called unsubstantiated the defense’s appeal to send the poster for forensic psychological and art expertise to determine the unethicalness of the advertising, insisting that the image on the poster violated the generally accepted norms of humanity and morality. Her statement was based on the definition of unethical advertising as provided in the Law on Advertising, Article 7: that which “contains the textual, visual and audio information that violates the generally accepted standards of humanity and morality through the use of offensive words, comparisons, images in respect to race, ethnicity, language, profession, social status, age, gender, religion, political or other beliefs of individuals”.

Moreover, the judge ruled that the Department of Internal Affairs of Almaty had the right to draw up protocols on administrative offences according to Article 636, secton 1, paragraph 1, which states that the cases falling under Article 349 can be drawn up by “the local executive bodies of oblasts and cities of national significance”.

With the appeal lost, the court ruling comes into force and both fines will have to be payed. But the judgement can still be reversed in the court of cassation, a higher instance court in Kazakhstan judicial system, so it appears that for Khamitzhanova the fight is not over.

She said she was ready for the guilty verdict but was surprised that the court had passed its decision so quickly, just within a few hours.

Khamitzhanova said that representatives of international human rights organization made it clear to her that her agency was “prosecuted with a homophobic subtext” and suggested she should fight until the end. The ads agency head said she would be sending a complaint to the United Nations Human Rights Committee.

“Our main point of defense was that we did not distribute anything even though we were charged with production and distribution of advertising of the products, works and services banned from advertising. It appears that our respected court considers it unlawful to advertise night clubs where representatives of the LGBT community might gather from time to time. Though we got rid of the article on sodomy already in 1997,” Khamitzhanova said.

Indeed, the Criminal Code of Kazakhstan criminalised homosexuality until 1997. This was inherited from Section 121 of the Criminal Code of the Soviet Union.The Soviet criminal code specifically targeted intercourse between men by imprisonment to 3-5 years. In 1998, mare 16 years ago, same-sex relations stopped being illegal in Kazakhstan.

Kazakhatn has signed several international treaties on human rights, including the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, which prohibit discrimination on any grounds, including (as it follows from resolutions of the UN Committee on Human Rights) discrimination on the ground of sexual orientation.

This, however, has not changed the generally negative attitude towards such relations. The reaction to the gay smooch poster is nothing but a reflection of the attitudes prevalent in the Kazakhstani society.

Same-sex relations are viewed as unacceptable, amoral and shameful in Kazakhstan, and are openly condemned. Lack of tolerance to sexual minorities is common for all the post soviet countries, probably because of their long history of criminalisation of same-sex relations that has shaped the mentalities of the societies in a very ridged and bigoted mold.

16 years of not automatically considering gay people criminals is clearly a period too short to change the mentality, especially since nothing is done to promote the tolerance.  

In Kazakhstan, homophobic attitude and discrimination of LGBT is not countered by any official bodies, even more so, most of the lawmakers openly support intolerance to sexual minorities and even call to follow suit of the neighbouring Russian and outlaw same sex relations once again by adopting an anti-gay propaganda law. 

Aldan Smayil, a Member of the Parliament's Lower Chamber, the Majilis, said that Kazakhstan needed a legislation that would enable it to close down gay clubs and bringing their owners to justice. He also declared that the idea of gay pride parades in Kazakhstan was unacceptable and that representatives of sexual minorities needed help of psychologists.

Another lawmaker Bakhytbek Smagul suggested banning same-sex relationships in Kazakhstan. “In Central Asia, where ancient cultures cross, and with Kazakhstan being an active member of the Islamic Cooperation Organization, they (same-sex relations) harm the image of our country and its domestic policies,” the parliament deputy said.

Some of the more radical groups do not shy away from openly insulting gay people. A Kazakhstan national movement Bolashak said there is a need to change Kazakhstan’s legislation to ban gay propaganda, prohibit gay people from holding public offices and serving in the military. The leader of the group Dauren Babamuratov said that it was easy to identify a gay person by DNA and a blood test should suffice to show presence of degeneratism in a person’s blood.

Secretary of the People's Communist Party of Kazakhstan Yelnur Beisenbayev said that gays deserved harsh punishment. "Besides the legal ban of the propaganda we should also adopt an anti-sodomy law like the one we had during the Soviet time. We need these laws, to make these (gay) people ashamed of themselves in our society," he said.

In 2009, the Soros Foundation-Kazakhstan found that 81.2% of respondents viewed the LGBT “disapprovingly and without respect”. A high percentage of LGBT people (at least one in four) experience physical and psychological violence because of their sexual orientation or gender identity. Nearly one in three LGBT people who had been the victim of homophobic or transphobic violence had been assaulted at least three times or more. In almost 80% of cases attacks on LGBT people are committed by private individuals, but in some cases (15%) the perpetrators are police.  

These numbers and the rhetoric of Kazakhstani politicians only suggest that there is no need to be surprised at the reaction over the gay smooch poster. On the contrary, such reaction was to be expected.

Nevertheless, the poster’s creator Daria Khamitzhanova is still hopeful. She said that her advertising agency would continue working and making other posters. Their next project, she said, would focus on the problem of child abuse.

By Dinara Urazova