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Kyrgyzstan Misuses Linguistic Examination in Favour of Prosecution

“Analysis of opinions and use of various examinations held in the last two years in Kyrgyzstan in judicial and investigative practices has emphasised the problem of absence of general scientific researches on the topic in question, diversion in academic assessments and doubtful verification of methods used,” Inga Sikorskaia, media expert and programme manager of the School of Peacemaking and Media Technology in Central Asia, wrote in her article for CABAR.asia.

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Brief description of the article:

  • Demand for linguistic examination in Kyrgyzstan has increased lately due to charges of inciting various types of hatred or as part of countering extremism. Various examinations are performed to qualify public speeches or disputed content and various opinions indicate the signs of inciting hatred. Most often, experts perform such examinations upon requests of investigative bodies or courts.
  • The investigation and court, within their competences, may independently determine whether the case is widespread taking into account the influence of the distributor of the alleged hatred, and whether it can be qualified as incitement of hatred, and whether it makes sense to open a criminal case.
  • Because of the absence of general scientific and interdisciplinary researches and published methodologies, the question of verification of the tools used in conducting linguistic examinations arises. Defence in such cases prefers to turn to independent experts for additional analysis of controversial content, which most often shows the opposite result.
  • It is recommended to introduce global experience such as the use of instructions for the courts, issues requiring the involvement of experts, and issues resolved by judges or performing special tests (from the experience of the USA, France, Germany), the significance of special knowledge with involvement of scientists for the understanding of the content “in question”.

The data and results of these studies are not published anywhere, not discussed in the academic community, although forensic examination should use only verified methodologies and approaches, and the expertise of experts should be supported by open scientific publications.

Most of the scholars involved in these examinations work with content only by request of the judicial and investigative authorities. It has become a practice when court judgements in many cases depend on expert opinion, which can vary depending on the agenda.

Pay attention
The accusation under the well-known article 313 of the Criminal Code of the Kyrgyz Republic, “inciting racial, ethnic, national, religious or inter-regional hostility (hatred)”, which includes public statements on the Internet and offline, is always accompanied by forensic examination of calls to action, statements or audiovisual content that have a certain social danger.

The rapid development of state forensic examinations of public statements began in Kyrgyzstan in mid-2016, amid the intensified fight against radical extremism and terrorism in the framework of the anti-extremist legislation of the CSTO member states.

This was followed by the practice when any public contradictory statement on a sensitive topic can be qualified as extremist statement.

The signs of Article 313 “Incitement to national (interethnic), racial, religious or inter-regional hatred” of the Criminal Code of the Kyrgyz Republic, which is used to charge public statements, are identically reflected in the basic concepts of the law of the Kyrgyz Republic “On countering extremist activity”. Among other acts, described very broadly, this includes general crime aimed at incitement to racial, national (interethnic) or religious hatred, as well as social discord, and several types of inciting statements.

Discussions regarding the appropriateness of linguistic examinations in public speech cases got even more intensive in early August this year, after the return to Kyrgyzstan of former presidential candidate Omurbek Babanov, the leader of the Respublika political party, who had been in Russia for two years after losing the presidential election in 2017.

Earlier in Kyrgyzstan, two criminal cases were opened against him, one of which was the “incitement to ethnic hatred” found by the state forensic examination in his speech to the voters in Amir-Timur (On-Adyr) microdistrict of the city of Osh, the southern capital .

Then, Babanov was speaking to the people, mainly ethnic Uzbeks, and called them to confront the violations during the elections, and subsequent interpretations of his speech on the Internet and social media draw public response and outrage of some citizens who complained about the politician to the Central Election Commission of the Kyrgyz Republic (CEC).

In November 2017, the Prosecutor General’s Office of the Kyrgyz Republic reported that “the philological and political examination found out” the presence in Babanov’s public statements of “calls aimed at incitement to ethnic hatred, provoking people to disobey and overthrow the current government”[1]

In March 2019, the online publication Barometr.kg, citing Mimoza Nuralieva, candidate of philological sciences, reported that Babanov’s speech was subjected to four more linguistic examinations in Kyrgyzstan and Russia, the results of which revealed that “there were no calls for ethnic hatred”[2].

At the time of this article was written, the academic community does not know the methods the experts relied on, who conducted the study, what was the basis for conclusions and which of the examinations is based on verified sources.

Sometimes when the political agenda changes, various examinations meant to reveal “the incitement of hatred and discord” fail. Some cases of public statements and cases initiated in 2017-2018 on the basis of expert opinions were reformatted due to “new” examinations.

For example, in May 2019, Pervomaisky District Court of Bishkek put a period to the case and freed Temirbek Bolotbek, professor of KGUSTA, from a charge. A criminal case had been initiated against him on February 2018 for his comments on Facebook regarding the “sad Soviet place” and his suggestion for “lovers of the Soviet times to go back to Russia.”

According to the opinion of linguistic experts, the user “called for incitement of national hatred, breach of national dignity and propaganda of exceptionalism”, which caused a long trial. His defence also turned to foreign experts for their expert opinion to support their body of evidence in court.

Although, within the limits of their competence, the investigation and the court could have immediately see that the case did not have that degree of danger so that it could be unambiguously interpreted as incitement of  hatred against a certain ethnic, racial group.

Such negative statements of a general nature most often do not pose a significant threat as they cannot be fulfilled. Therefore, criminal prosecution in such cases does not make sense.

Does the judiciary need to involve professors to explain a few phrases? Often, expert opinions contain links to publicly available dictionaries and other electronic sources, whose review does not require special knowledge, unlike, for example, religious expert examination.

This April, another linguistic examination reached the conclusion that posters with the words: “Putin is an aggressor”, “No Russian bases should be here”, “No to Putin’s torpedoes in Issyk-Kul”, which were held by activists protesting in front of the Russian embassy during the visit of Vladimir Putin to Bishkek,  “contained calls incitement of hatred against ethnic, religious and racial.”

After searches made in the activists’ house, they were charged with incitement of hatred against ethnic group, were detained and then placed under house arrest until the end of June. As a result, the case was dismissed due to the absence of corpus delicti.

This year, after long trials and a series of independent examinations, human rights activists managed to exclude the alternative report to the UN Committee on the Protection of the Rights of Migrant Workers from the list of extremist materials. The activists accidentally found their report on the list of banned materials in March 2018 as no one notified them of the court decision made on the basis of the expert opinion.

In August 2016, the state philological examination of an alternative report to the UN Committee on the Protection of the Rights of Migrant Workers, prepared by the human rights movement Bir Duino-Kyrgyzstan, together with colleagues from Belgium, delivered a verdict, on the basis of which the report was put on a part with extremist materials and terrorist groups banned in Kyrgyzstan.

The semantic content of one of the six sections entitled “Migrants workers from Kyrgyzstan of Uzbek origin -“clandestine refugees ”, highlighted the problem of ethnic Uzbeks who moved to Russia after the June events of 2010. It described the threats of their extradition, the danger of torture and ill-treatment, and the decisions of the European Court of Human Rights, which allowed to prove the reality of risks and cancel the extradition in some cases.

According to the opinion of the linguistic expert as of August 13, 2016, the alternative “report contains explicit elements of Neuro-Linguistic Programming” and therefore should be prohibited for distribution in the territory of the Kyrgyz Republic.

In this case, the public and the academic community also remained unaware of the methodology, its verification, scientific validity and transparency, as required by the law “On forensic activities in the Kyrgyz Republic”.

“Public statements or materials on socially unapproved topics in the Kyrgyzstan society are at great risk of being exposed to a motivated linguistic examination without any reason,” Gulbadam Gadelzhanova, an expert of the critical discourse analysis group of the School of Peacemaking and Media Technology in Central Asia, said. She participated in an independent analysis of the alternative report to the UN Committee on the Protection of the Rights of Migrant Workers at the request of human rights activists.

This year, more than 10 people on trial contacted our organisation with a request to conduct independent study on public speech and video content. “This is quite a lot for Kyrgyzstan,” she added. Although we do not conduct such examinations, but investigate illegal and discriminatory forms of hate speech, we do advise and help some people who are in a difficult situation and do not trust the opinions of forensic linguists. The fate of many people under investigation and defendants, in fact, depends on the opinion of experts.

Dmitry Dubrovsky, candidate of historical sciences, research officer of the Centre for Independent Sociological Studies (Saint Petersburg), said that in 99 per cent of cases the majority of expert opinions do not provide new information.

“This is just the formalisation of meaning,” Dubrovsky said, “They [experts] rephrase the text just with the help of thesaurus. In fact, they tell us how to understand what is clear anyway.”

The scholar studies the practices of linguistic examinations in Russia, took part in expert studies of Kyrgyzstan, indicates similar content and law enforcement.

Most often, courts do not consider the content “in question”, but focus entirely on the expert opinion of the prosecution. This is what threatens the justice.

According to Dubrovsky, there are about 15 “expert” organisations, which can perform any examination by order of a customer, prosecutor or investigation. Most often, guilty verdicts are based on such expert examinations.

In this situation, the scholar said, it’s necessary to bind research institutions to publish their expert opinions on their websites, and such transparency will make some experts, even few, not write their absurd opinions.

“The methodology of linguistic examinations should be generally accepted, have strictly scientific basis, and be proved,” he said.

Any knowledge brought by modern scholars to court must be applied in science and known beyond courts to protect the court from manipulations of experts who follow the agenda of the investigation.

Another measure may be a special test for courts. Its key idea is to find out whether it’s necessary to have special opinion of doctors of sciences to understand the content “in question”. In most cases, there is no need in it, so the case may be considered without any reference to experts.

Such practices are available in the United States, France, Germany, where judges have clearly defined recommendations regarding the issues that need expert opinions, and issues that may be solved solely by judges.

Defence in such cases prefers an independent out-of-court examination for additional analysis of conflict content , which most often shows the opposite result.

This publication was produced under IWPR project «Forging links and raising voices to combat radicalization in Central Asia»

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