With new president Kassym-Zhomart Tokayev, Kazakhstan has seen minimum progress regarding people persecuted for their political and religious beliefs. The global community tries to make their contribution to this progress. Nevertheless, “religious” trials never end, and it’s impossible to acquit persons charged with “extremism” and “terrorism”.
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For the first time the Supreme Court reversed the sentence regarding a person charged under two articles of the Criminal Code, namely crimes “against peace and human security” and “against public security and public order.” In fact, this case stands out of hundreds of other cases, where persons involved serve their term in prison.
“A resident of Akmola region after independent study of various religious books, including from the internet, started practising non-traditional branch of Islam. He wanted to share his knowledge and registered in social media, and then he posted materials and audio records on his personal accounts that contained propaganda of terrorism, calls for terrorist acts and incitement of religious animosity and hatred. These social media accounts were available to all internet users,” according to the regional media that published the message of the press service of the Interior Affairs Department of Akmola region.
It was found out that Ramazan (not his real name) posted a few nasheeds (Arabic religious chants) on his social media page and a few disputable materials in 2014. When his relatives found this out, they not only made Ramazan delete these materials, but also blocked his access to the internet. However, the intelligence agency managed to get access to the screenshot and opened the case in 2017, when the man already got interested in Christianity instead of Islam.
The court was held in the same year, when he was accused under two articles of the criminal code – “incitement of religious hatred” and “propaganda of terrorism”. In such cases, the prosecution is based on the results of the examination only. This is what happened in this case, but it turned out that the investigation used the services of a text expert who was not proficient in such things and who didn’t have the relevant license. His expert opinion had to be found invalid. And the investigation and the court seized the chance: earlier the accused was followed up by a psychiatrist, so he was found “very dangerous” for the society and was forced to undergo treatment. When he was taking treatment, his relatives were filing complaints to the Supreme Court, which suddenly took a decision: the judgement was quashed and the case was to be reviewed by a profile expert.
The second case that stood out from the whole group was reported by lawyer Bauyrzhan Azanov on November 12, 2019, who was systematically defending the accused under “religious” charges.
He managed to win the case in the administrative court of the capital on a charge of a religious person who was accused of storing religious materials that were found extremist ones in the territory of Kazakhstan. The acquitted Sakhim Erkebulan faced a direct threat that his administrative case could turn into a criminal one with a long prison term. According to the lawyer, this was “the first court victory in the history of the country under this article.”
Although, these two cases are a drop in a bucket.
16 acts of violent extremism and over a thousand of convicted of extremism and terrorism
“In the last 9 years, Kazakhstan faced 16 acts of violent extremism, over 500 citizens joined terroristic movements in Syria and Iraq, about 100 of them died, over 1,000 Kazakhstanis were sentenced on charges of terrorism and extremism. The latter indicator has grown steadily in the last five years,” according to the expert of the Institute of World Economy and Policy, sociologist Serik Beisembaev, who cited EurAsia Daily.
In fact, the number of Kazakhstanis convicted of “extremism” and “terrorism” is much higher, but the majority of them were sentenced for publications and reposts of religious materials, which were found by experts as having signs of propaganda of extremism and terrorism.
According to the Legal Statistics and Special Accounts Committee of the General Prosecutor’s Office, in the nine months of 2019, 300 cases were pending for 11 months under seven articles of the Criminal Code related to “extremism” and “terrorism” (and which were used to held liable “improper” religious persons), and only 172 cases of them came to trial. If we take into account that every case can involve a few persons, then the number of those held liable could be doubled. Up to 200 participants of military operations in Syria and Iraq returned to the country, almost half of them were convicted. In addition, there are a few dozens of political opponents and those convicted of inciting national hatred. But the main group of convicted consists of “religious people”. The list of organisations and people “related to financing of terrorism and extremism” (that automatically includes all persons convicted of “extremism” and “terrorism”) compiled by the ministry of finance contains 1,565 persons. This list is obviously depicting the approximate number of people who are now in prison under such charges or have been recently released. It’s very easy to get into this list.
One of the recent known examples is the court over eight Muslims in Almaty.
On November 20, 2019, the court of appeal upheld the sentences from 5.5 to 7.5 years in prison regarding eight convicted Muslims (the ninth defendant is waiting for the court judgement due to his serious illness). On August 5, they were sentenced for theological discussions in a closed WhatsApp chat. They were accused of citing a Saudi theologian Al-Fawzan and critical phrases regarding Sururis (a branch of Salafis in Saudi Arabia), which are unknown in Kazakhstan. They criticised even more IS and other radical Islamic movements in the chat. As there were no aggrieved party, the investigation and the court had only the expert opinion in hand (as it turned out, the expert was very far from religion and did not have a relevant license).
“As far as I can see, there are puppet experts, too. He does whatever law enforcement bodies tell him to do,” lawyer Shamiyan Zhailkhanov said sorrowfully.
Together with the relatives of the convicted, he applied to the St .Petersburg Institute of Independent Examination and Assessment asking to review the “expert” opinions of Mukhataeva and Akbarova involved by investigator Rustemov of the National Security Committee. Two prominent Russian professors Alla Melnikova and Vasily Belov doubted the expertise of Mukhataeva and Akbarova, whose expert opinion was in one case sealed by a stamp of a sole proprietor.
“The opinions stated therein are of probabilistic nature and are based on the expert’s subjective opinion and the likelihood of the error is 90 per cent as the issues were not deeply studied given all specified circumstances based on reliable and valid methods recommended for forensic linguistic examination,” this is the essence of almost 40-page analysis of what the National Security Committee took as a scientific opinion.
In the court of appeal, the defendant party was deceived as it was told that any documents supporting the innocence of the defendants would be filed. However, when it came to the court of appeal, the opinions of Russian experts were not going to be filed away. “According to the Criminal Procedure Code, this is called newly discovered facts,” according to the lawyer. It’s obvious that no one in the judicial system is going to let fallacious findings of the lower court and NSC raise doubts.
Currently, another trial is taking place in Almaty. Bekzhon Shalabaev, whose both kidneys are not functioning, is being accused of “propaganda of terrorism” and “participation in activity banned in Kazakhstan” for the fact that he did not hide his membership in Hizb ut-Tahrir.
“The resource of the command”
In the meantime, another call was received from Nur-Sultan, which lets us hope for partial cancellation of some criminal cases initiated on political and religious charges.
At first, on October 30 this year, the large-circulation newspaper “Vremya” published the opinion of Marat Shibutov, a political analyst, chairman of the supervisory board of Transparency Kazakhstan and analyst of the Russian Association of Border Cooperation, regarding article 174 of the Criminal Code “Incitement of social, national, tribal, racial, estate or religious hatred” (104 criminal cases on this article were pending in 11 months of 2019).
“This is nonsense, but now opinions of experts – linguists, philologists, political analysts, religious scholars – play a key role in trials when ascertaining the guilt, although this is incorrect. (…) Moreover, the content of this article has not been explained in detail for so many years of its enforcement. This responsibility lies with the investigator and their findings, and then the case goes to court. As a result, many people convicted of article 174 are classified by Kazakhstan-based and international human rights defenders as “political prisoners” and this situation is unacceptable for a law-bound state,” he wrote.
This article and some other “political” articles have caused discontent of Kazakhstan-based human rights activists and international organisations since 2015, when the new criminal code was adopted. However, the difference is that Marat Shibutov in July this year became a member of the National Board of Public Trust initiated by President Tokayev. The board itself was dubiously taken by the Kazakhstan society, but one might assume that its members can voice the opinions of Akorda. However, it’s impossible to imagine that a critic of actions taken by the authorities would be speaking from the pages of a large newspaper.
As it could be expected, this “people’s voice” was heard by the president at the end of the year. On December 20, at the second session of the National Board of Public Trust (where Marat Shibutov is a member), Kassym Zhomart-Tokayev ordered to decriminalise the article “libel” and to “humanise” the article “incitement of hatred”: “For example, stop using the wording “incitement” and use a more exact legal notion “fomentation” instead. However, what it will give remains unclear.
This is how a prominent human rights defender, Evgeny Zhovtis, the head of the Kazakhstan International Bureau for Human Rights, sees this situation.
“The National Board of Public Trust tries to demonstrate certain positive intentions to change some articles in law and some practices that cause discontent of the active society and are constantly criticised by human rights defenders within the country and by international organisations. The issue is that it is not very clear how it will be implemented as this article along with some other laws is a kind of resource of the command that will be used in cases when the authorities in power see the threat in mobilisation or in some certain persons who stir up the public opinion,” he said in the interview to CABAR.asia.
For this reason, according to Zhovtis, it is unlikely that force authorities will let the “proper initiative” deprive them of “unlimited resources in their struggle against the dissent and political opposition.”
Lawyer Bauyrzhan Azanov doubts that few cases mean the beginning of some changes.
“This was the first case regarding the storage of prohibited literature in my practice. I used to have cases initiated under other “religious” articles, and termination in our case is equal to acquittal. But I don’t think it was done due to some calls, it was rather an exception to the rule. I had a call from Kustanai just recently. They said another case was initiated under article 174 (“incitement of hatred” – author’s note),” he said.
All together
Fionnuala Ni Aolain, special UN rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, visited Kazakhstan in May this year. Her preliminary findings turned to be rather harsh:
“The Special Rapporteur is particularly concerned about the term “extremism”, which had been used in the national legislation and law enforcement practice. (…) The agency of the Special Rapporteur was earlier concerned about the term “extremism”, which had been used not as part of a strategy to counter violent extremism, but as an offence in itself. The Special Rapporteur thinks that the same concern is caused by articles 174, 179, 405 and some other articles of the Criminal Code. (…) The Special Rapporteur, although assured that no tacit measures can be applied without a court-approved warrant, was still concerned about the statements about special investigation measures, including “provocative” ones, in terrorism and extremism cases.” In particular, the Special Rapporteur stopped on article 174. “Article 174 of the Criminal Code of Kazakhstan about incitement of “social, national, tribal, racial, estate or religious hatred” is most often used against civil society activists and especially against religious organisations. The article generally criminalises incitement of hatred based on rather vague grounds and does not ensure real protection to people belonging to minority groups.”
Please see the preliminary findings of the visit to Kazakhstan of the Special UN Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism.
The UN spoke about the lack of religious freedom in the republic back on November 7 this year, when Kazakhstan submitted its report in the framework of the Universal Periodic Review. Representatives of Denmark, United Kingdom and United States again spoke about unfulfilled promises of the now Nur-Sultan. Following the previous report, UN experts provided four recommendations, among others, to the Republic of Kazakhstan related to the observation of rights to freedom of conscience. In their reply, the authorities of Kazakhstan said many things about religious tolerance in the society and about the meetings of the leaders of world and traditional religions in the capital, yet said nothing about making the legislation compliant with international requirements.
In general, the United Nations may have a series of complaints to Kazakhstan concerning the observation of human rights. The UN committees on human rights and against torture received almost a dozen complaints about the violation of religious rights by the state. In fact, when it comes to Christians or Krishnaits, Nur-Sultan can depart from its practice of fundamental non-compliance with resolutions taken by convention bodies of the UN, despite ratified obligations. First of all, it could be due to the pressure coming from the Western countries; secondly, the state doesn’t consider the violations serious (for example, deportation from the country or imposition of fines). These were the reasons why two convicted Protestants were released under plausible excuses after the UN Committee on human rights and the UN Working Group on Arbitrary Detention adopted relevant resolutions. And the opposite example is the only decision of the UN Committee on human rights regarding Zhaslan Suleimenov, a wheelchair user, who served eight years in prison on a charge of running a terrorist organisation. The UN recognised his reasons in full, that he was tortured after arrest and maltreated in prison. However, the Republic of Kazakhstan refused to pay compensation to him for his sufferings because they allegedly did not receive any proof of torture that would be mentioned in the judgement.
“I don’t believe there could be serious changes in human rights protection, including religious freedom, in this regime. Just look at the reaction of the global community to the situation in the country, with everyday pressure and framing up of cases against people who stand against the legal mayhem. There were people who were far from this and yet they found themselves inside this punitive system,” ex-prisoner Zhaslan Suleimenov said to CABAR.asia.
After he was released from this punitive system, he started dealing with human rights protection issues and has an idea of the situation from all sides.
This publication was produced under IWPR project «Forging links and raising voices to combat radicalization in Central Asia»