Kyrgyzstan needs to seriously revise the laws on “extremism” and “hate speech” in order to bring them in line with the republic’s international obligations and achieve the right balance between protecting people from discrimination and hate-based violence, on the one hand, and protecting the right to freedom of expression, on the other hand. This is stated in the report “Kyrgyzstan: freedom of expression and extremism”, prepared by the British human rights organization “Article 19” in cooperation with the independent non-profit organization “Media Policy Institute”.
Like the governments of many countries around the world, Kyrgyzstan has developed and adopted laws and regulations to combat “extremism”. Article 19 notes that there are several key challenges in both national legislation and its enforcement.
“Due to too vague and unspecified terminology, there is a high risk of overly broad interpretation and application of the law. This is especially troubling if the law provides for harsh criminal penalties for violators,” the report says.
The authors of the report believe that the legislation in its current form doesn’t comply with either the requirements of the article 31 of the Constitution of Kyrgyzstan, or the international obligations of the state in the field of human rights.
The report examined certain parts of the legislative restrictions on freedom of expression that Kyrgyzstan has allegedly adopted to combat “extremist” content.
“The restrictions under consideration, introduced under the wording of extremism in Kyrgyzstan, cover a wide range of behavior and expression, often vaguely defined. These include criminal penalties against individuals (both speakers and those involved in the dissemination of prohibited content), quasi-criminal measures against non-governmental organizations and the media (forced closing), and measures aimed at direct content restriction (content removal, marked as “extremist material”) out of circulation,” the authors of the document write.
At the same time, it was noted that the legislation of Kyrgyzstan doesn’t use the term “hate speech” itself; instead, other formulations are used: “incitement to hostility (hostile actions)”, “incitement to discord”, and “propaganda of exclusivity, superiority or inferiority” (based on various defended characteristics).
“However, hate speech is a convenient abbreviation for these different categories of prohibited discriminatory speech. It would be inappropriate to use the language of international human rights treaties and call it restrictions on “incitement to hatred”, since in practice they meant speech that didn’t reach the threshold of incitement,” the authors of the report point out.
The drafters of the document note that the legislation of Kyrgyzstan on “combating extremism” imposes additional restrictions on freedom of expression, which operate in parallel with criminal measures. Whereas the Criminal Code punishes individuals who are either the authors of prohibited forms of speech or are considered to be disseminators of such speech. The Law on counteracting extremist activities allows the state to directly target prohibited content.
“Article 1 of the Law on counteracting extremist activities defines “extremism” by enumerating the prohibited “extremist” actions. This is an extensive list, ranging from serious violent crimes (such as terrorism or a coup d’état) to vague national security threats and vaguely defined forms of speech that are not equal to incitement to violence or other criminal behavior,” the report said.
According to the laws of the Kyrgyz Republic, “extremist material” is not only material that contains expressions that are expressly prohibited as a form of “extremist activity” in the first part of the article 1 of the Law on counteracting extremist activities. It is also material that may not have such kind of statements, but is considered as “appealing” or “justifying or proofing” them.
“The inherently vague notions of rationale and justification are quite problematic, even when they are used in connection with undoubtedly serious threats such as terrorism. They are even more problematic when applied in the sense of an utterance that “justifies or proofs” other forms of utterance. This definition of “extremist material” directly expands the scope of prohibited speech beyond hate speech, including legitimate expression of opinion, which should not be restricted in any way. For example, it can be used to a newspaper column that expresses disagreement with the conviction of a particular person for an extremist crime and explains that this person’s statements were not hate speech, even if the journalist doesn’t reproduce any of their original, allegedly instigating forms of words,” the authors of the report write.
The Law on counteracting extremist activities introduces measures that are directed to the prohibited content, as well as measures that do so indirectly, punishing media and civil society organizations for publishing prohibited content. Content can be excluded from any form of public distribution due to the fact that it is officially recognized as extremist material, with its subsequent inclusion in the official list of extremist materials.
The law also targets organizations and media, which are responsible for disseminating “extremist” or hate speech. The only measures specified in this regard are a permanent ban on the activities of civil society organizations and religious organizations, and, in the case of the media – final closure.
In addition, the Law on counteracting extremist activities allows the authorities to seek the termination of a media or non-governmental organization for any violation of the article 1 of the Law on counteracting extremist activities, regardless of the extent or frequency of illegal behavior, the organization’s intentions, its broader goals, or extenuations. At the same time, it doesn’t require the authorities to do so (except for non-compliance with the prescription, when the termination of activities is mandatory). This practically unlimited freedom of action allows for complete arbitrariness in the application of the measure.
The authors of the report noted that it was not possible to conduct a comprehensive review of judicial practice on “hate speech”, because the court decisions (including in criminal cases), as a rule, were not published. However, sufficient monitoring and litigation data were collected for the report to identify certain established patterns in the courts’ approach to hate speech cases.
Firstly, in determining whether a particular statement is “extremist” (that is, falls under any of the prohibited categories of “hate speech”), courts focus solely on the wording of the statement. No attempt is made to establish and evaluate other determinants such as the speaker’s intention, context, etc.
Secondly, the speaker’s intent (for example, to “breed strife”) is automatically implied as soon as it is found that the language of the contested statement has reached the necessary level of insultingness.
Thirdly, the courts don’t engage in even the most superficial assessment of how likely it is that the contested statement should have caused harm, that is, how likely it is that it will lead to any of the results prohibited by the Criminal Law (for example, interethnic or transnational, religious enmity or strife). Neither the speaker’s actual ability to influence the audience nor the likely perception of the utterance by the audience is considered important.
Fourthly, in the same way, the apparent absence of harm is not considered as a circumstance that excludes or at least sharply diminishes the speaker’s responsibility. In some cases, serious criminal sanctions have been imposed on statements that have already been in the public domain for a significant period of time (a year or longer), without any evidence of harmful consequences.
“This total ignoring of context and intentions makes the application of hate speech restrictions not only excessive, but also counterproductive to the very purpose of those restrictions. This has a chilling effect on public debate and media reporting on the topic of hate speech, its initial causes, prevalence and responses required,” the authors of the report say.
It is noted that, as an offshoot of a strictly textual approach, the courts overly rely on expert opinions in the form of linguistic expert assessments, which are de facto mandatory in all hate speech proceedings. This is done through an independent analysis by the court of all relevant circumstances, including the language used.
“It is noteworthy that it never occurs to judges that what matters only is how the contested statements were or can be perceived by their target audience, and not by linguistic experts; and therefore, in this sense, the judges themselves should be fully capable of understanding and evaluating their meaning without the participation of “experts”. One of the striking examples of this extreme respect to experts: it took four expert opinions to exonerate a person for the silly, albeit rather rude, short comment that he posted on Facebook. The comment was the only sentence about people’s nostalgia for the Soviet era that didn’t contain any discriminatory or hate speech towards any particular protected group,” the report says.
Apart from the language of the application, the only factor that the courts and investigating authorities consider important is its public nature.
“The analysis of hate speech legislation, included in this report, reveals a number of serious shortcomings, which render the legislation incompatible with international standards of freedom of expression,” the experts of Article 19 note.
“Some of these shortcomings in hate speech legislation can be corrected by limited interpretation with respect for human rights. The real practice of its application by courts, law enforcement and regulatory bodies shows a completely different picture:
– the definitions of “hate speech”, contained in the legislation, are not interpreted narrowly, but broadly;
– when determining whether a given statement is a prohibited form of “extremist” speech or “hate speech”, the speaker’s intentions, the context of the statement, his audience or the likelihood of harm are not taken into account. The authorities apply a “magical thinking” approach to “hate speech,” in which harmful consequences such as ethnic or religious “strife” are automatically implicit in the transgressive language of speech;
– courts and law enforcement agencies fully rely on the conclusions of linguistic experts in their assessments of the alleged “hate speech” through their own independent analysis of the content of the statement and other relevant circumstances. This complete and absolutely inappropriate use of linguistic expertise shifts de facto responsibility from courts and law enforcement agencies to forensic experts who, by definition, are unqualified and not unauthorized to rule on matters of law;
– considerations regarding the protection of freedom of expression are not subject to judicial review in hate speech cases. The impact of criminal sanctions or other restrictions on freedom of expression is not considered by the courts as a significant factor. Consequently, the courts are not trying to assess whether the restriction is strictly necessary and proportionate to the requirements of international human rights law,” the authors of the report write.
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