‘Our authorities never mistake?’ Practice of protection of persons accused of extremism
For the past seven years, the number of convicts for extremism and terrorism in Kyrgyzstan has tripled. In 2009, according to the State Penitentiary Service (SSC), 51 people were convicted for such crimes, whereas today 185 people including 7 women are serving their sentences. Among this category of prisoners 22 people are accused of fighting in Syria, 97 - membership in Hizb-ut-Tahrir, 84 - committed their crimes for the first time. 38 people are kept in high security prisons. Who are these persons? How did they end up in the dock?
Some of them were clients of our lawyers’ association. Communicating with them and their relatives and analysing the trials we came to sad conclusions: the circumstances in which many of these people fell, made them criminals not through their own fault. I will tell you about several cases from my lawyer's practice.
Brought home a book - got a term
At the beginning of this year, one man turned to our office telling his son was detained for possession of extremist materials. I explained to him that under Article 299-2 (“the acquisition, manufacture, storage, distribution, transportation and transfer of extremist materials, as well as the deliberate use of symbols or attributes of extremist or terrorist organisations”) of the Criminal Code of Kyrgyzstan, charges we have not had acquittals yet.
In one Soviet film, the investigator interrogating Marshal (highest military rank in Soviet Army - note by Fergana), Tukhachevsky (a period of repressions in 1930s - note by Fergana) possibly, says: “You are a German spy, working for Germany.” “You are mistaken,” the defendant replies. “Our authorities never make mistakes,” the investigator retorts. How it looks like the current situation in Kyrgyzstan, where, if you got into the hands of the law enforcement authorities, it is unlikely that you will get out of them.
In general, I told the man that it is possible to hire at least ten lawyers, such as Fyodor Plevako (the famous Russian lawyer of the pre-revolutionary period - note by Fergana), his son will be convicted anyway. However, I took the case. I met my client in SIZO (pre-trial detention centre - note by Fergana). The young man made a good impression; well spoken, broad-minded, competently speaking about his incident.
My client explained that he attend the mosque. During one of these visits a young stranger approached him and gave him a leaflet to read, which my client took to his home leaving it on the shelf. He did not find a time to read forgetting about it. A few days later the police came showing the sanction of the court to search, and seized this book. According to the conclusion by a specialist of the State Commission for Religious Affairs, the brochure refers to the literature of the banned Hizb-ut-Tahrir in Kyrgyzstan.
We talked for a long time. When you listen your client with attention and concern like a doctor, they open all doubts that torment their soul to you . At the end of the conversation, he suddenly asked me: “Is it true, that my cellmates say that the leaflet is ‘framing’ by the police, they need targets to achieve?” What could I tell him? I'm a lawyer, not a fortune-teller.
The investigation ended and the trial started. The relatives of the young defendant arrived in the courtroom. Everyone looked confused. They talked in a low voice (sometimes there is indignation at the trials, noise). The defendant's wife was sitting with a baby in her arms, nursing him back to the corner of the hall when he was crying. She wiped her tears with the edge of her handkerchief looking at her husband, who was sitting behind the bars.
The prosecutor asked the defendant the same question that I had asked him during the investigation: “Are you a member of Hizb-ut-Tahrir?”
The answer is: “I'm not.”
“Do you support the ideas of Hizb-ut-Tahrir?”
“I do not know what their ideas are, and I do not support them.”
The sentence of the court is three years of colony-settlement (which is a light form of imprisonment, sometimes outside the prison territory - note by Fergana).
After the trial, one of his relatives approached me saying that this young man dreamed of working in law enforcement. He asked what would happen to him next? I had to upset him explaining that he can not now work not only in law enforcement agencies, but also in many other state authorities. The man heaved a deep sigh, suddenly saying that the Kyrgyz need to return to Tengrianism (the name of the pre-Islamic and pre-Buddhist religion of the Turkic-Mongolian nomads of the Eurasian steppes - note by Fergana).
The case of Rashod Kamalov
Not so long ago, the case of imam of Al-Sarahsi mosque in Kara-Suu of the Osh region Rashod Kamalov - influential in southern Kyrgyzstan drew a broad response, who was sentenced to ten years in a medium security prison for inciting inter-religious hostility. The imam claimed at his trials that his persecution is the revenge of law enforcement agencies.
According to Mr Kamalov, shortly before his arrest he attended a discussion of the issue of combating extremism with the participation of representatives of law enforcement agencies, local self-government and clergymen. He stated that some police officers turned the fight against extremism into a “personal business” extorting money from the detainees. After such a speech some well-wishers suggested the imam to go abroad, but he refused.
The initial trial of Rashod Kamalov was attended by a large audience. In the early days, the authorities, cordoned off the entire perimeter of the courthouse, apparently fearing unrest. The courtroom was overcrowded during all his trial proceedings; people stood in the aisles, outside the windows and the door, listening attentively.
In Soviet times, on-site trials were conducted to display the justice and for educational purposes letting a lot of people to attend. I do not know if the present audience was convinced of the justice. In any case, it was obvious that they did not sympathise the prosecution.
Immediately after the arrest of Rashod Kamalov, violating Constitutional provisions, the law, presumption of innocence, the press service of the Ministry of Internal Affairs of Kyrgyzstan accused him of “zombieing” people on the basis of appeals from ten citizens who had claimed that the imam was sending their children to Syria. Moreover, “accomplices” who helped the imam in this case were identified. At the same time, neither Mr Kamalov nor his "accomplices" were charged. The “victims” also disappeared.
Rashod Kamalov. Photo by “Azattyk”, 2011
Revenge for refusing to give up a share
The convicted K., who had a good business selling tires on the Kara-Suu market, also stated that the arrest was a revenge of the police workers. Once, three police officers approached him and hinted that he should share profits with them. He refused. A few days later the police came to the house of K. with a search. Directly at the entrance, a black package with a brochure was found in the corridor of the house, which was recognised by the expert of the State Committee for Religious Affairs as published by Hizb-ut-Tahrir.
There was an inscription addressed to a certain person on the leaflet. There was no such name in K.'s house. The underage son of K. explained that he had found this black package at the entrance to the home, and without looking brought it into the corridor, since he was in a hurry to school. The package did not arouse his suspicions, because the neighbours constantly leave them with food waste for their livestock. The search in the house of K. passed with a gross violation of constitutional and criminal procedure norms, and without the sanction of the court. According to our complaint, the court found the search illegal.
This K., we can say, is lucky. The criminal proceedings against him started before August 2016, that is, until the punishment according to the Article 299-2 of the Criminal Code of Kyrgyzstan was tightened, on which it was possible to achieve a suspended sentence. The man pleaded not guilty and did not admit belonging to Hizb-ut-Tahrir. He was convicted conditionally.
We appealed, hoping for an acquittal. The case went twice to the Supreme Court and returned to reconsideration. After long litigation, I once asked him how things are going on selling tires. I realised that I had upset him. He was sad. There is no more business, he says. While he was under house arrest, he could not work with his partners, and they stopped cooperating.
“Now I'm buying bulls at the market, raising and selling them,” the man sighed. “I need to feed the family somehow.”
Trumped up cases on extremism
Or another case from the recent past, when conditional convictions were possible. A young man came to our office, about 30 years old. Frustrated, with tears in his eyes. He was sentenced by the court of first appearance to a suspended sentence for the storage of extremist materials.
“I have nothing to do with Hizb-ut-Tahrir. This material was planted to me,” the man said, “I returned home from South Korea for a week. I work there washing cars. Parents are old, one of them is disabled, four underage children, my wife does not work. I need to feed the family. Now I cannot leave the country.”
He asked what the chances are to be acquitted. I frankly told him that the chances are minimal, because “our authorities never make mistakes.”
The manuscripts were seized from the other young man in his house, according to the conclusion of the expertise, relating to the activities of Hizb-ut-Tahrir. At the trials, the accused was indignant: “I am an avid gambler, everyone in the Kara-Suu district knows this. What a Hizb-ut-Tahrir member I am? I was planted with these manuscripts.” We asked to conduct a handwriting examination, which concluded that the handwriting is not his.
In another case, the 70-year-old man was conditionally convicted for storing extremist materials. As he explained at the trial, he had been given a brochure to read during his Hajj (Muslim pilgrimage to Mecca - note by Fergana). But he never read it - the old man was not enough literate to read it shelving it.
Another criminal case against 21-year-old resident of Kara-Suu Abdullo Nurmatov stirred the public of the southern Kyrgyzstan in late 2015 - early 2016. He was battered by police, tortured, arrested, and then sentenced conditionally to one year of imprisonment for possession of extremist materials. And the young man just liked the photos of the convicted imam Rashod Kamalov in the social network.
Abdullo Nurmatov (right) in court during the verdict announcement
Punished for nothing
Recently A. Sh. was convicted for distributing extremist materials. As reported by the press service of the State Committee for National Security (GKNB) in a press release on 24 January this year, during a search in the house of A.Sh. “A large number of DVDs with calls to overthrow the constitutional order in the Kyrgyz Republic were found and seized.”
In 2015, working as a janitor while in Sweden, A.Sh. discussed the activities of Hizb-ut-Tahrir with two other associates in connection with the marches of protest “Islam Karimov against Islam” organised in the UK and Turkey. This discussion was made on video and posted on the Internet.
At the end of 2015 A.Sh. returned home to the Kara-Suu district, where almost a year and a half after that recording, he was detained by GKNB. The defence at the trial came up with following arguments: First, this video had been distributed not by the defendant; Secondly, even if A.Sh. had committed an offence it belongs to the jurisdiction of the Kingdom of Sweden, from which no instructions were received.
The defendant in response to the questions of the prosecutor if he is a member of Hizb-ut-Tahrir, and whether he supports the ideas of this organisation, A.Sh. answered negatively. Nevertheless, the court sentenced him to three years in a colony-settlement.
As for the discovered DVDs allegedly “with calls to overthrow the constitutional order” in Kyrgyzstan, the press service of GKNB somewhat hastened. These disks were not brought to court as an evidence against A.Sh. And according to our information, they had an erotic content.
By the way, in the same press release GKNB accused the staff of the “Bir Duino-Kyrgyzstan” human rights movement in an attempt to prevent the detention of A.Sh. and a search in his house, which was an outright disinformation.
No “Bir Duino-Kyrgyzstan” staff was on the site at this time. In the Pervomaisky District Court of Bishkek, “Bir Duino-Kyrgyzstan” filed a lawsuit in mid-February on the protection of honour and dignity. The case is still under consideration. But this, as they say, is another story.
At the end of April this year, I had the opportunity to participate in a round table in Bishkek to discuss the Yearbook on Human Rights in the Kyrgyz Republic. The Yearbook begins with an article on the topic of compliance of the legal framework on combating extremism and terrorism in Kyrgyzstan according to international standards. A good article. Much can be learned about international standards for the protection of human rights while countering terrorism. It's a pity that this article does not provide an analysis of how these criteria are observed in Kyrgyzstan, based on examples from domestic law enforcement practice.
For example, Article 299-2 of the Criminal Code, according to which the persons I have indicated above were convicted, has been repeatedly amended tightening punishment. At present, this article is formulated as follows: “The acquisition, production, storage, distribution, transportation and transfer of extremist materials, as well as the deliberate use of symbols or attributes of extremist or terrorist organisations.” Each of the word combinations in its name forms a separate part of the crime.
So, if earlier the storage of extremist materials was linked to its spread, then the changes introduced in 2013 made the “storage” a separate body of the crime. If earlier this type of crime provided conditional conviction, then the changes introduced in August 2016 excluded them. Thus, the number of those serving convictions for such acts will now increase.
Is it possible to confine a person only for the storage of extremist materials? The question is debatable. I think that intent must be revealed: why does a person store this material? Storage can be for study, for scientific purposes, random - because someone asked to leave for a while and so on. Such a progress would lead to accusing law enforcement officers who keep extremist literature in their offices.
Once, during a speech by an officer of the Ministry of Internal Affairs of Kyrgyzstan, he described the criminal dynamics in extremism showing the symbols and attributes of extremist and terrorist organisations along with the figures on the slides. I marked that his materials can also be considered as a crime - “possession, distribution and manufacture.” Absurd - you will say. But is it not absurd to sentence a young man who liked a photo of a disgraced religious figure in the social network?
Another point. According to Article 13 of the Law on Counteracting Extremist Activity, which was adopted on 17 August 2005 (it is almost identical to the similar law in Russia), information materials are recognised as the extremist by the court at the place of their discovery on the basis of the prosecutor's motion.
The court decision is sent to the justice authorities, and the list of extremist materials is subject to publication in the mass media and on the official websites of authorised state bodies in the field of justice.
More than 11 years after the adoption of this law, a list of several materials found as extremist by courts appeared on the website of the Ministry of Justice of Kyrgyzstan. Also a list of extremist materials seized during criminal proceedings published. However, a material is recognised as extremist according to civil law procedure, in courts of general jurisdiction. It turns out that there are no materials recognised by the court as extremist according to the order established by law, but people are convicted.
As far as I know, there is no criminal liability for the storage of extremist materials in other post-Soviet countries. But we are more advanced. The law in Russia provides only administrative responsibility. And they have a federal list of extremist materials on the website of the Ministry of Justice of Russia - there are more than 4,000 of them.
Who are experts?
The Law on Counteracting Extremist Activity stipulates that a coordinating expert committee shall be established to conduct an expert examination to discover extremist content in information materials and oral statements, while its Regulations and the structure shall be approved by the Government of the Kyrgyz Republic. However, until now no such a body has been established yet.
It is important because the examinations conducted by the experts of the State Commission for Religious Affairs do not meet the criteria set by the legislation on expert activities. A separate issue here is the competence of experts, the availability of special knowledge. Their conclusions are limited to a few sentences, such as “not in accordance with the law,” “contrary to the constitution,” etc. These experts can give different interpretations on the same material.
So, the main evidence in the criminal case against imam Rashod Kamalov was a disk with records of his sermons, in which an expert of the State Commission for Religious Affairs established calls for inter-religious hostility. However, earlier in September 2014, the same CD with Mr Kamalov's sermons had been confiscated during the search of the house of another convict Dilyor Jumabaev. The investigator, returned it among other seized disks to Djumabayev's relatives, since the same expert of the State Commission for Religious Affairs had not found anything illegal in the sermon recorded on this disk.
The same disc on 25 March 2015 was discovered with a journalist and US citizen Umar Faruk, who claimed that the disk had been planted by police officers. The journalist said, why should he keep this sermon, if it is posted on the Internet. It is noteworthy that this time the expert of the State Commission for Religious Affairs has found calls for inter-religious enmity in it. On 28 March that year, the Osh City Court deported the journalist stating that “there is insufficient data for criminal prosecution.”
Of course, the fight against extremism and terrorism requires the most strict punishment for such acts. There is no dispute about this. Extremism and the extreme form of its manifestation - terrorism - present a real threat to the prosperous, civilised existence of human society. But is it possible to counteract this phenomenon only by punitive measures? How to protect innocent people from the risk of falling under the millstone of the power system to combat extremism? This is a very subtle topic that requires in-depth research. After all, as shown by the examples I have cited, the guilt of the convicts on charges of extremism have not been proven.
Valeryan Vakhitov, lawyer, member of the lawyers “South ProFi” Association, Osh city