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16.10.2018 / Kyrgyzstan

Review of the KR legislation on creation of a list of extremist materials

In March this year, during the review of the official website of the KR Ministry of Justice, a list of extremist materials was found in the Activities section. Upon careful examination, it was revealed that in the document entitled "List of legal entities and Internet sites banned on the territory of the Kyrgyz Republic" item No. 26 in the column "Name of legal entity (organization)" contained the following: Report of ADC Memorial submitted by the Human Rights Movement: Bir Duino-Kyrgyzstan and the human rights organization Freedom House entitled: "A Chronicle of Violence: the Events in the South of Kyrgyzstan in June 2010 (Osh region)", and in the column "Grounds for including a legal entity in the List": "Decision of Oktyabrskiy District Court of Bishkek as of 05.01.17", and in the final column "Category of legal entity (organization)" it is indicated: "Extremist".

It is noteworthy that in the Activities section of the website of the KR Ministry of Justice there is a link to the "List of Extremist Materials", and a completely different document is being downloaded entitled "List of legal entities and Internet sites banned on the territory of the Kyrgyz Republic".

It should be noted that this list consists of three columns: 1) Name of legal entity (organization); 2) Grounds for inclusion of a legal entity in the List and 3) Category of legal entity (organization). However, there are no references to "extremist materials" in any of the titles of the above mentioned columns.

Thus, along with such worldwide known terrorist and/or extremist organizations as Akromiya (No. 1 on the list), Al-Qaeda (No. 2), the Taliban Movement (No. 7), the Islamic Party of Turkestan, the Islamic Movement of Uzbekistan, the IMU, the Islamic Renaissance Party (No. 10), the Islamic State or the Islamic State of Iraq and the Levant (No. 11), Hizb ut-Tahrir al-Islami, Hizb ut-Tahrir (No. 14), Jabhad al-Nusra (No. 16) and many others, nowthere are the ADC Memorial, NGO "Human Rights Movement: BirDuino-Kyrgyzstan" and human rights organization "Freedom House" included as No. 26 on the List.

In the course of acquaintance with the Decision of the Oktyabrskiy District Court of Bishkek dated 05.01.17, it was found out that:

The materials of the alternative report of ADC "Memorial", submitted jointly with the NGO "Human Rights Movement: Bir Duino-Kyrgyzstan" to the UN Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families and the survey report of ADC "Memorial" prepared in collaboration with the Norwegian Helsinki Committee and the human rights organization "Freedom House" published under the title: “A chronicle of Violence: the Events in the South of Kyrgyzstan in June 2010 (Osh region)”, have been recognized as extremist and stirring up ethnic hatred on the territory of the Kyrgyz Republic.

It is prohibited topublish, replicate, store, transport and distributein electronic, audio, audiovisual and printed form, including posting on the Internet, of the alternative report of the ADC "Memorial" submitted together with the NGO "Human Rights Movement: Bir Duino-Kyrgyzstan" to the UN Committee on  the Protection of the Rights of All Migrant Workers and Members of Their Families and the survey report of ADC Memorial, prepared in collaboration with the Norwegian Helsinki Committee and the human rights organization Freedom House, published under the title: “AC hronicle of Violence: the Eventsin the South of Kyrgyzstan in June2010 (Osh Region)”.

The ADC "Memorial" is prohibited to carry out its activities on the territory of the Kyrgyz Republic.

Execution of the court decision is entrusted to the SCNS and the Ministry of Internal Affairs of the Kyrgyz Republic.

On May 29 this year we filed an appeal against the decision of the Oktyabrskiy District Court of Bishkek dd 05 January 2017, and an application was submitted to restore the missed period of appeal against the decision.

However, on 05 July 2018, the Judicial Boardfor CivilCases of Bishkek City Courtchairedby A.N.Kudaibergenov and the judges N.A. Iliyazova and M.B. Dzheenbekova, without going into the merits of the case, refusedthe application of the NGO "Human Rights Movement: Bir Duino-Kyrgyzstan" to restore the period of appeal against the decision of the Oktyabrskiy District Courtof Bishkek dated 05 January 2017.

Despite the obvious justification of not meeting the deadline for appeal, since infact the court decision was received by the NGO “HRM Bir Duino-Kyrgyzstan” on May 14, 2018 according to the letter of the Ministry of Justice of the Kyrgyz Republic, and that was the moment when the period for appealbegan, and the reisno objective evidence that the NGO "HRM Bir Duino-Kyrgyzstan" knew or should have known about the existence of this decision, the judicial board decided that the NGO "HRM Bir Duino-Kyrgyzstan" unreasonably missed the termofappeal.

The procedure for establishing a list of extremist materials

In Article 1 of the Law of the Kyrgyz Republic "On Countering Extremist Activity" (hereinafter the Law) the following is meant by the extremist organization and extremist materials:

extremist organization - public associations or religious organizations or other organizations in respect of which, on the grounds provided for in this Law, the court has adopted an enforceable decision to liquidate or prohibit their activities due to performance of extremist activities;

extremist materials - documents intended for promulgation or information presented in another form, calling for implementation of extremist activities or justifying or defending the need to carry out such activities, publications that justify or defend national (ethnic) and (or) racial superiority or justify the practice of committing military or other crimes aimed at the total or partial destruction of any ethnic, social, racial, national or religious group.

The current legislation of the Kyrgyz Republic envisages maintaining of the list of extremist materials by the Ministry of Justice of the Kyrgyz Republic (Article 13 of the Law).

According to paragraph 1 of this regulation, publication, storage, transportation and distribution of certain printed, audio, audio-visual and other materials is prohibited on the territory of the Kyrgyz Republic. Theseinclude:

a) officialmaterialsofbannedextremistorganizations;

b) materials, authored by persons convicted in accordance with international legislation for crime sagainst peaceand humanity and containing the signs provided for by Part 1 ofArticle 1 oftheLaw (seebelow);

c) any other materials, including anonymous, containing the features provided for in Part 1 of Article 1 of the Law, namely:

“1) activities of public associations or religious organizations or other enterprises, organizations and institutions, as well as mass media, regardless of the form of ownership, or individuals on planning, organizing, preparing and carrying out actions aimed at:

violent change of the foundations of the constitutional order and violation of integrity of the Kyrgyz Republic;

undermining the security of the Kyrgyz Republic;

seizure of power or usurpation of authority;

creation of illegal armed groups;

unfolding terrorist activities;

incitingracial, inter ethnic or religious hatred, as well as social discord connected with violence or calls for violence;

humiliation of national dignity ;

calls for mass riots, acts of disorderly conduct and acts of vandalism based on ideological, political, racial, ethnic (or) religious hatred or enmity, as well as on motives of hatred or enmity towards any social group;

propaganda of exclusivity, superiority or inferiority of citizens based on their religion, their social, racial, ethnic, religious or linguistic affiliation”.

Article 2992 of the Criminal Code of the Kyrgyz Republic provides for imprisonment for the period of three to five years with deprivation of the right to hold certain posts or engage in certain activities for acquisition, production, storage, distribution, transportation and sending of extremist materials, as well as willful use, including demonstration of symbols or attributes of extremist or terrorist organizations.

Besides that, if this act was committed by agroup of personsor through abuse of official position or using financial or other materialas sistance received from foreign, public association sandr eligious organizations or other organizations, as well as for eigncitizens, or during public events or by a person previously convicted for extremist or terrorist crimes (extremist activity), it is punishable by imprisonment for a period between seven and ten years with deprivation of the right to hold certain positions or engagein certain activities according to part two.

According to article 2584 of the Civil Code of the KR, information materials are considered extremist by the court in response to the prosecutor’s application at the district where they were found, distributed or where the organization is located that produced such materials.

In response to the prosecutor’s application, the court has the right to temporarily restrict access to information materials before making a decision (part 2 of the same article).

To execute examination to detect extremist content incertain information materials and oralstatements, acoordinating expert committee iscreated; the Regulations for the committee and its composition are approved by the Government of the Kyrgyz Republic (art. 4 oftheLaw).

In accordance with Article 2585 of the Civil Procedure Code of the Kyrgyz Republic, the application is reviewed by the court with participation of the prosecutor who made the claim and the persons indicated in the application if their whereabouts are known. Failure of the persons mentioned in the application to appear in court, in case they have been duly notified of the time and place of the court session, does not prevent the court from consideration of and making a resolution on the case.

If the location of the persons indicated in the application is unknown, the court considers the application in their absence.

A copy of the judicial decision, that has entered into legal force, on the extremist nature of the information materials is sent to the executive authority in the area of justice. The list of extremist materials is subject to periodic publication inthemass media, as well as on official websites of authorized state bodiesin the sphere of justice, which counteract extremist activities.

Materials included in the list of extremist materials are not subject to dissemination on the territory of the Kyrgyz Republic.

Persons responsible for illegal manufacture, distribution, transportation and storage of the sematerials for the purpose of further dissemination are subject to criminal prosecution.

Expert, lawyer Erik Iriskulbekov

Source: birduino.kg