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Numbers of Convicted for Inciting Hatred Increase in Kazakhstan

They are listed as extremists and even after release those convicted under article 174 of the Criminal Code encounter severe barriers to employment and earnings.

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A resident of Atyrau, Talgat Ayan, is known to many Kazakhstanis as the opponent to “land reform”. He has become a hero together with Maks Bokaev for many people as after the protest they took part in April 2016 the transfer of Kazakhstan land to foreigners was frozen.

However, officially, in November of the same year both were convicted under three articles of Criminal Code, one of which was 174, “Incitement of social, national, generic, racial, class or religious hatred”.

Talgat Ayan (on the left) and Maks Bokaev (on the right). Photo: RFE/RL

Over a year ago, Talgat was released on parole, but in his opinion he cannot live now as he used to because severe barriers are everywhere. Although he was not convicted of extremism, but article 174 is deemed the extremist one.

It appeared in the criminal code of Kazakhstan on July 3, 2014, and came into effect in January 2015. Before that, a similar article, 164, had been effective, which was “incitement of hatred”. The maximum punishment it provided was 10 years in prison, but also a penalty instead of incarceration.

But after 2015 the penalty was replaced with a jail time, and the maximum imprisonment under article 174 was increased to 20 years.

Article 174. Incitement of social, national, generic, racial, class or religious hatred
  1. Deliberate actions intended to incite social, national, generic, racial, class or religious hatred, offend national honour and dignity or religious feelings of citizens, as well as propaganda of the exclusivity, superiority or inferiority of citizens on the basis of their attitude to religion, class, national, generic or racial assignment, if these actions are committed publicly or using the media or telecommunication networks, as well as by production or distribution of literature or other media that promote social, national, generic, racial, class or religious hatred are punishable by custodial restraint for a term of two to seven years or imprisonment for the same term.
  2. The same actions committed by a group of persons, a group of persons by previous concert or repeatedly or combined with violence or the threat of it, as well as committed by a person using his official position or the leader of a public association, including using funds received from foreign sources, shall be punishable by imprisonment for a term of five to ten years with disqualification to hold certain positions or engage in certain activities for a term of up to three years or without it.
  3. The actions set forth in the first or second parts of this article, committed by a criminal group or having grave consequences, shall be punishable by imprisonment for a term of twelve to twenty years with disqualification to hold certain positions or engage in certain activities for a term of up to three years or without it.

Moreover, even after serving punishment, convicts under this article cannot hold certain posts or engage in social activities. This is especially hard for civil activists who collaborate with international human rights organisations.

In addition to severity, lawyers are concerned with vague definitions of the article itself.

“[Vagueness] makes it easy to charge anyone with this article for anything. Although the main thing is you need to prove intent. It’s not enough for a person to say something; you need to ask why he said it to understand if he wanted to incite hatred. After all, if a person said he did not want to incite hatred and did not know their words could lead to such consequences, this cannot be deemed as intent. But in practice they don’t prove intent here,” lawyer Aiman Umarova commented.

However, the criminal prosecution authorities apply this article very actively. According to the Committee on Legal Statistics of the General Prosecutor’s Office, 82 cases were registered under Article 174 in the Unified Register of Pre-trial Investigations in 2015. In 2016 their number almost doubled.

One of the explanations to the sharp increase in the number of trials under this article is the terrorist attacks that took place in Aktobe and Almaty in 2016 and shortly before a wave of land protests in some towns, after which the authorities started to overreact to their criticism on the internet.

21 cases with 32 people involved were considered in courts in six months of 2019.

The charge under article 174 was a shock to Talgat Ayan. During the trial, his case consisted of 70 volumes, including 30 containing screenshots of messages and printouts of telephone conversations.  According to him, they did not find any signs of discord there, but they referred to the state expert review. The court didn’t take into account the opinions of independent experts.

“Experts, philologists and political analysts didn’t find any signs of inciting hatred in my posts. The investigators scanned my post together with comments and sent them for expert review. They found incitement not in my words, but in comments to the post. They allegedly contained criticism of deputies, government, president.

In court they said it was incitement of social hatred against the authorities as a social stratum. Although, the expert couldn’t answer to court how the authorities can be a social stratum,” Ayan said.

According to lawyer Bauyrzhan Azanov, in some western countries one needs to prove that after an “extremist statement” a crime followed – a murder, physical violence, etc. in order to hold a person accountable under a similar article. Kazakhstan does not practice it and those who accuse cannot even explain explicitly what “social discord” is.

Bauyrzhan Azanov. Photo: bureau.kz

“There is no such a concept as social discord in the law. Once they have it in the Criminal Code, they must explain it.  However, neither the Criminal Code, nor the Criminal Procedure Code, nor regulatory resolutions of the Supreme Court have it,” Azanov said.

When it comes to politically motivated cases, according to Talgat Ayan, laws are violated.

“Every lawyer’s petition is rejected, every petition from the prosecution is allowed. The law is used as a cover in politically motivated cases,” the activist said.

No absolution

According to statistics for 2014-2018, Kazakhstan did not quash any judgment of conviction under article 174.

According to Aiman Umarova, those charged under this article are stigmatised as “radicals” and the courts do not want to be held responsible for their absolution.

“Once they exculpate someone, the KNB officers may find a bunch of other articles and accuse the judge of absolving a radical,” the lawyer said.

These assumptions have not emerged out of nowhere.

This February, the Aktau Town Court found 39-year-old resident of Aktau Aigul Akberdieva not guilty due to “absence of the criminal act”. She was charged with “calling for take-over”. However, the prosecutor’s office appealed against this decision and the chair of the Aktau Town Court, Malik Kenzhaliev, was removed from office.

He said he was persecuted and asked international organisations for protection, but then changed his mind.

However, not-guilty verdicts sometimes happen under article 174. This July 31, Bauyrzhan Azanov posted that his client managed to prove their innocence. According to the lawyer, such cases are rare.

“In the recent case, we won because one review panel found [signs of inciting hatred] and the second one didn’t find. The experts started to have a dispute. Thus, the expert opinion that found signs of inciting hatred raised questions, so they had to drop criminal charges,” Azanov said.

More sufferers for religion

Of all convicted under article 174, the worst situation have those who are convicted for religious hatred, lawyers said. They have almost no chances to be acquitted of the charge.

The algorithm of actions from the moment of detention by the police to the conviction has already become a routine. Anti-extremism department officers surf the Internet, most often the VKontakte social network, and browse the accounts of users who post religious information. They wait for someone to repost a religious quote from the Sunna or even a picture, make screenshots and send them for expert examination.

“The tendency is such that at first they don’t see anything maleficent in the case, then they involve experts, and they allegedly find it, but it’s not clear how. This is especially true when it comes to religious extremism. There are a lot of words from Quran in such texts, as a rule. After reading them, a philologist far from religion says, “oh, there are signs of incitement of religious hatred,” Bauyrzhan Azanov made an example.

Even if competent theologians are involved in the expert examination, among them, according to lawyer Aiman Umarova, there are specialists who follow one branch of Islam and discriminate against other branches.

Worse than murderers and rapists

Compared to those convicted of theft, robbery, and even murder, those serving a sentence under article 174 have a stricter attitude on the part of the investigation, Talgat Ayan shared his experience.

“When I was in a penal colony, I met a lot of people convicted under article 174 for inciting religious hatred. Sometimes they have difficulties meeting with a lawyer and relatives,” Talgat recalled.

Moreover, in most cases those convicted of “inciting hatred” cannot be released on parole, Aiman Umarova said.

Aiman Umarova. Photo: theopenasia.net

“The parole law states that parole can be granted if there are no victims. Even murderers and rapists, who have victims and deceased, are eligible for parole, but extremists cannot be released even if there are no victims,” the lawyer said.

According to the stories of lawyers, those convicted under article 174 may be granted parole if they cooperate with law enforcement agencies. But this “cooperation” may continue after release.

“They are forced to work for law enforcement agencies. They constantly call them for questioning, force them to provide information, give testimony against certain people. Their families are being persecuted. These people cannot live freely anymore,” Umarova said.

Freedom as continuation of prison

Those charged under article 174 who do not cooperate after leaving the penal colony continue to be persecuted and face obstacles in their social life.

Talgat Ayan applied for parole without much hope and on July 29 this year received approval. He believes he was released in order to “reduce the degree of social tension.” Although only a few days later, the Atyrau Prosecutor’s Office appealed to the appellate division with a private petition for the cancellation of parole.

However, upon release, the activist saw the continuation of prison, which was manifested in severe barriers that impeded his employment and earnings.

For example, he cannot get a job, as those convicted under article 174 appear on the “list of extremists”. They are also entered into the register of the Committee for Financial Monitoring and don’t have access to financial transactions.

“I can only be hired by those who can pay in cash. I cannot get a bank card, I cannot transfer or receive money via remittances, I cannot use the services of a notary, insurance company. I don’t even have access to a pawnshop, where they told me I was on the list of persons convicted of extremism. I cannot get a loan, either,” Talgat said.

Lawyers believe the consequences of article 174 are excessively severe and it must be decriminalised and removed from extremist articles. According to Bauyrzhan Azanov, now this article marginalises a person as after the release the person does not have an opportunity to earn a living.

“Their life is even harder than that of rapists, murderers. Those convicted under ordinary criminal articles, even murder, are released and continue to work and melt into the crowd. And these people become social outcasts,” the lawyer said.

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

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