In Kyrgyzstan, law enforcement agencies are not prosecuting for real calls for violence and discrimination and not for actions that caused harm to anyone based on hatred and enmity, but for keeping texts and images at home, in the isolation ward’s cell, in the memory of mobile phone. This conclusion was made by the authors of the analysis of law enforcement activity and innovations in the legislation on combating extremism.
The document was prepared by the Public Fund “Civil Initiative for Internet Policy”. It presents a consistent study of the applicable norms of international law governing freedom of expression and its limitations, including in the context of various approaches that exist in democratic law and order, as well as the accessible practice of the Kyrgyz Republic regarding the application of international human rights norms.
The authors of the report note that the fundamental laws in this area are the Law No.150 “On countering extremist activities” dated August 17, 2005, and the provisions of the Criminal Code, as well as the Violations Code. The Misconduct Code does not contain provisions establishing liability for violations of anti-extremist legislation.
“Most of the court cases on charges of extremism were considered on the basis of the Criminal Code of the Kyrgyz Republic of 1997, which was in force until January 1, 2019. The number of published court decisions is small, they fall into two groups: criminal prosecution and administrative prohibitions of texts as extremist,” human rights activists say. “The first group includes accessible sentences. These are convictions under the article 299.2 of the Criminal Code of the Kyrgyz Republic of 1997 on “Keeping and distribution of extremist materials”.
Human rights activists cite an example when one of the convicts served 23 years in prison on another sentence for an extremist or terrorist crime. “A black flag with inscriptions in Arabic was found in the detention center. Theological examination found that the inscription on it refers to the Caucasian Emirate of the Islamic State, which is banned in a number of countries, including the Russian Federation,” the report says. “With reference to this evidence, as well as to the testimonies of cellmates regarding the finding of the flag, without further legal analysis, the Sverdlovsk District court of Bishkek convicted the defendant and sentenced him to 8 years in prison. Based on the previous sentence, he was extended for three and a half years.”
In a similar case, there was a search on suspicion of theft of shoes. During the search, religious literature of the movement “Yakyn Inkar” (Yakyn-Inkar) was found, which was recognized as extremist in 2017.
“The course of the search was confirmed by the testimony of witnesses, the extremist content of the books was confirmed by an expert who recognized their destructive nature and the presence of calls to overthrow the constitutional order,” said the human rights organization. “These legal conclusions of the expert report were copied, without any further assessment, into the verdict of the Panfilov District court of Chui region, which sentenced the defendant to three years in a penal colony.”
The authors of the report write that the second group of cases includes court decisions that banned seven groups of materials (mainly books and films) included in the list of the Ministry of Justice.
“Among them is the Dutch film on homosexuality and Islam “I am gay and Muslim” filmed in Morocco, which is a legitimate form of discussion of social problems in a democratic state,” human rights activists write. “Also, the list contains 65 items of “seized extremist materials” representing documents that served as evidence in criminal cases; all of them belong to the organization “Hizb ut Tahrir”. In addition, about 20 organizations are recognized as extremist or terrorist, but court decisions on this are not available.”
The report also notes that criminal prosecution is carried out against people already known to law enforcement bodies in other cases (convicted or suspected), or members of groups recognized as extremist, i.e. law enforcement agencies “are looking under the lantern”.
“The persecution is not carried out for real calls for violence and discrimination and not for actions that caused harm to anyone based on hatred and enmity, but mainly for keeping texts and images at home, in the isolation ward’s cell, in the memory of mobile phone. Thus, the actions of law enforcement agencies create criminals, but do not recover the actual damage caused by criminals to the victims,” the authors of the report say.
According to human rights defenders, court decisions, both in criminal and civil (essentially administrative) cases, follow expert opinions in all respects, which answer not to questions requiring special knowledge, but to questions of law. Moreover, there is no judicial control over the conclusions of experts in practice.
“At the same time, the article 313 of the Criminal Code of the Kyrgyz Republic so far does not seem to have become the main means of repression in the field of combating extremism online, in general, sentences mainly concern physical subjects, rather than statements on the Internet. This saves the Kyrgyz Republic from criminal penalties and time limits for statuses in social networks, likes and reposts, as happened in Russia until 2019, but there are no guarantees that such a development is ruled out,” the analysts write.
The authors of the analytical report developed recommendations on improving the anti-extremist legislation of the Kyrgyz Republic so that it does not become a “tool of convictions for posts, likes or reposts on social networks”.
“Since in the Law of 2005, the concept of “extremist activity”, as indicated above, is mainly a compilation of various crimes and does not have its own meaning other than these crimes, the best recommendation would be to repeal the Law of 2005 completely and unconditionally. As for the lists of extremist organizations and materials, they serve the assembly line of criminal cases against people who have not caused harm to anyone,” human rights activists say.
But since the abolition of existing anti-extremism legislation is politically hardly possible, it is proposed to reduce the negative effect on the observance of human rights through certain measures. Among them, the introduction into the definition of extremist activity of an indication that this concept is aimed at protecting vulnerable minorities, consideration of cases on recognizing organizations or materials as extremist in such a way that the burden of proof rests with state bodies, as well as ensuring the real independence of experts from state bodies that apply anti-extremist legislation, in the absence of such – an appeal to foreign experts.
“Toughening procedural standards will reduce the potential for abuse and overly widespread use of anti-extremist legislation, which, in turn, will contribute to compliance with international human rights standards,” the authors of the analytical document are convinced.
In addition, it is proposed to introduce the following amendments to the Criminal Code of the Kyrgyz Republic:
– the introduction of a direct indication in the article 313 of the Criminal Code of the Kyrgyz Republic that actions, prohibited by it, can only be taken in relation to a vulnerable minority or its representatives;
– the exclusion of examinations that answer legal, rather than factual questions, from among the admissible evidence. The introduction of the requirement for the independence of experts in criminal cases from the case’s parties, including and primarily not only from the prosecutor personally, but from the state as an institution in general;
– the exclusion of articles 314 and 315 from the Criminal Code of the Kyrgyz Republic or their transfer into the category of violations or at least misconduct.
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