Errors in appointing a forensic examination in cases of incitement of hatred
Repressive measures against the Salafis are implemented mainly by bringing a criminal prosecution under Article 174 of the Criminal Code “Incitement of social, national, tribal, racial, class or religious hatred” (used mainly for bringing charges for inciting ethnic, social or religious hatred) and Article 256 “Propaganda of terrorism.” Both articles establish criminal liability for grave crimes and entail serious penalties.
Experts point to the inaccurate wording of Article 174 of the Criminal Code: it does not clearly spell out the corpus delicti, or actions for which a person can actually be held criminally liable. A vague wording may result in an overly broad interpretation of this provision and, therefore, allow for an arbitrary application of the law.
According to the Law of the Republic of Kazakhstan “On the Fight Against Extremism,” incitement of hatred is a type of extremist activity that manifests itself in a verbal (oral) form. Cases brought under Article 174, in their absolute majority, should be considered by means of a forensic psychological and philological (linguistic) expert review, because the source of evidence of a crime and the key elements of research and legal evaluation are represented by a text and its content. In the course of a forensic philological expert review the content of the text is investigated, as well as its semantic orientation, presence or absence of a persuasive speech in the form of propaganda of extremist activities and/or whether it contains a call for carrying out specific extremist actions, and an assessment is given of the linguistic means used in the creation of a possibly extremist text, etc. In other words, investigation of controversial information materials in cases of incitement of hatred belongs in the realm of linguists who possess the knowledge of methods of analysis of rhetorical methods of persuasive influence.” [1, pp. 80-81]
This requirement for the subject of an expert review is often not followed when a forensic examination is prescribed and carried out in cases of incitement of hatred. For instance, the agency that conducts the criminal process refers the issue of analysis of the content-semantic and formal aspects of the controversial information material, and of the linguistic means, to an expert in political science hired on a one-off basis rather than a philologist (linguist). In other words, the investigation erroneously determines the specific type of knowledge necessary to resolve the issue at hand by entrusting the expert review of information materials with an expert whose competence does not encompass expert research in the relevant field. As a result of such erroneous approach to the expert review, the political science expert is unable to keep up with the assigned task, and cannot establish and investigate the facts of possible extremist speech acts.
A comprehensive, high-quality and well-substantiated expert opinion is impossible without the task being formulated correctly. However, in practice when a judicial political science or psychological and philological expert review is appointed in the cases of incitement of hatred, the agency that carries out the criminal process places the burden of proof on experts in political science and philologists, by asking them questions that require legal qualification of the objective side of a speech act as corpus delicti. The criminal-law term “incitement of social, national, tribal, racial, class or religious hatred” contains the qualification of an offense considering the objective and subjective side of the criminal offence. On the objective side, the corpus delicti is in that an influence has been actively exerted on people with the help of words, documents, slogans, posters, or other information materials in order to induce them to commit certain actions. On the subjective side, the crime has been committed with direct intent (the person committing it was aware of the nature and direction of his/her speech behaviour, and wanted to act in this way specifically). When the law contains a certain indication of the direction of the actions committed by the accused person (actions-statements aimed at ... inciting ... hatred), that implies that direct intent is being established in the text. As a matter of fact, hidden behind these questions are the following queries: “Did the accused person want to flare up (incite) social discord by uttering X?” “Did the accused person want to offend the national honour and dignity of citizens by his/her statement?” etc. Therefore, obviously posing such questions to the experts is illegitimate because intent is established subject to the entirety of all evidence available in the case and, therefore, deciding on whether intent was or was not lies within the exclusive prerogative of the subject of proof. It is unacceptable to ask experts to resolve the question whether the text at hand contains the elements of a crime—in particular, whether or not the text contains the “elements of incitement of social, racial, national or religious hatred or enmity;” the “elements of insult to national honour and dignity or religious feelings of citizens,” etc., when the expert is bound to go beyond his/her scope of competence trying to provide responses. Only a law enforcement officer with the knowledge of the law can and should qualify the actions described in the text and alleged to be illegal. In particular, legal and not linguistic or any other special knowledge is necessary in order to resolve whether to classify the actions described in the information material as an attempt at a violent change of the constitutional order, a terrorist act, etc. In such cases, an expert may be engaged only to identify whether the text contained communicative elements of persuasive influence—for instance, in the form of calls for action or justification of a need to take certain actions. If such elements are indeed found to be present in the material, then the experts can explain exactly what actions are described, but without qualifying them from a legal standpoint.
In expert practice relating to the cases of incitement of hatred it is widespread that experts in political science give a direct legal assessment of the contents of information materials at hand. In particular, the experts take it upon themselves to independently establish the author’s objective in inciting hatred, or whether the text contains terrorist propaganda, etc. Such factors give a chance to treat such expert opinions made by political science experts as inadmissible evidence; however judicial practice in cases of incitement of hatred has demonstrated that such examinations are, in fact, accepted by the courts and verdicts are issued predominantly based on the opinions of political science experts. An expert opinion which has allegedly established the elements of inciting hatred becomes a key argument for the prosecution in court, while the motive and intent of a potential crime are simply ignored.
Here is one glaring example in a myriad of such cases. In 2009, the Almaly district court for the city of Almaty had found Yelizaveta Drenicheva, a missionary of the Unification Church from Russia, guilty of inciting clan, racial, ethnic and religious hatred, and sentenced her to two years in prison. The investigation was carried out by the KNB department for the city of Almaty. The prosecution argued that Yelizaveta Drenicheva used the “elements of psychoterror and zombification.” Thanks to the intervention of human rights defenders, the Almaty City Court had changed her sentence by replacing it with a fine. Two forensic examinations were conducted in this case: the first one by Ye.Ye. Burova, a political science expert, and an additional one by political science experts Ye.Ye. Burova, Zh.A. Baysalbaeva, and A.A. Ustimenko. The specialists believe that Ye. Drenicheva’s verdict was issued on the basis of those clueless expert opinions given by Ye.Ye. Burova and other political science experts. The fact that their findings contradict modern scientific knowledge, and their fallaciousness has been expressly confirmed by the opinions of experts such as S.Yu. Kolchigin, Doctor of Philosophy, Ya.F. Trofimov, Candidate of Philosophy in Religious Studies, and R.D. Karymsakova, Candidate of Philology. The main objection mounted was against Ye. Burova’s and other political science experts’ finding of inferiority of citizens on the grounds of their clan and class affiliation. Ms. Burova understands the “clan” to be “the human clan” as opposed to “Divinity,” and draws differences between the human race and Divine Beginnings, whereas Article 164 of the Criminal Code speaks of propaganda of inferiority of citizens. This article does not cover the inferiority of other (abstract!) entities. The same applies to the conclusion about inferiority of citizens on the basis of their class affiliation. Here, the expert classifies families as “true” and “untrue.” In her expert opinion, Ye. Burova claims that belief in God negatively affects productivity, and love for God undermines the foundations of the family law of the Republic of Kazakhstan. However absurd were the findings of those so-called “experts” who also doubled as lawmakers in this case by actually re-defining legal terms, it did not deter the court from issuing its verdict on the basis of those opinions.
A great number of human rights activists believe that when used in such a way, Article 174 of the Criminal Code of the Republic of Kazakhstan becomes an instrument of persecution for religious beliefs. The chairwoman of the Almaty Helsinki Committee Ninel Fokina, the founder of the human rights movement in Kazakhstan, who died in December 2019, concurs with such a view. In 2009, she gave her assessment of a trial of a Russian missionary: “Yelizaveta Drenicheva was actually subjected to repression based on her religious beliefs. And one singular case of repression, no matter how isolated it may be, always contains the elements of commonality. In other words, repressions for religious beliefs, once started, will not stop at Yelizaveta Drenicheva. Following the logic of repression, it was Yelizaveta Drenicheva who was convicted today. Tomorrow, it may be other followers of the Unification Church, because they have the same religious convictions. And the day after tomorrow, they will go after the Orthodox Christians, Jews and even Muslims—who today perhaps are hoping to stay away from it all.” 
When information is deemed to incite discord
In light of the above, the question arises (what content elements should a text (expression) contain in order to qualify to be recognized as inciting discord?), the answer to which is a key one in diagnosing verbal extremism.
The answer to this question should be sought primarily in the legal definitions. Incitement of social, national, tribal, racial, class or religious hatred, according to Article 1 of the Law of the Republic of Kazakhstan “On the Fight Against Extremism” is a type of extremist activity (incitement of social, class hatred (political extremism); incitement of racial, national and tribal discord... (national extremism); incitement of religious hatred or discord... (religious extremism).
Article 1 of the Law of the Republic of Kazakhstan “On the Fight Against Extremism” contains the definitions of extremist acts and extremist materials:
- “5) extremist acts – direct implementation of acts with extremist purposes, including public calls for such acts, propaganda, agitation and public display of the symbols of extremist organizations”;
- “7) extremist materials - any information materials containing the elements and/or calls for extremist acts or justifying or excusing the need for such acts (emphasis added by the author).
These definitions point at speech acts that bear liability under Article 174 of the Criminal Code of the Republic of Kazakhstan. Those are information materials that:
1) call for aggressive, violent acts directed at citizens based on their social, national, tribal, racial, class or religious affiliation;
2) substantiate or justify the need for a hostile, hateful attitude toward people based on their social, national, tribal, racial, class or religious affiliation;
3) substantiate or justify the need for aggressive, violent acts directed at citizens based on their social, national, tribal, racial, class or religious affiliation.
Therefore, the elements of expressiveness of the term “inciting certain types of hatred” are those meaningful elements that are contained in the above definitions. Accordingly, the questions that are put for resolution by an expert (specialist) in the cases of incitement of social, national, tribal, racial, clan or religious hatred should be aimed at ascertaining those elements.
In order to substantiate the presence of an element of incitement of hatred in a statement, it must be proved that the analysed fragment is indeed such a statement whose goal is to substantiate a hostile attitude toward a group of people as described in the law. To do this, it is necessary that:
- the speaker has expressed an opinion that the representatives of a group possess negative moral qualities, negative properties, vices—that are permanently manifested in their behaviour or specific acts (hypothetical examples: Christians are wild, cruel people; Kazakhs are a lazy, envious nation);
- the speaker has substantiated his/her opinion with such opinions that confirm that hostile, intolerant, hateful attitude toward all representatives of a group is justified and the right thing to do, and that aggressive, violent acts against a person based on his/her affiliation with a certain group are necessary, and justified such an attitude and acts [3, pp. 5-7].
The objective of such a rhetorical structure is to form in the listeners/readers/viewers a hostile attitude toward the selected group, and an attitude that approves physical acts against the representatives of such a group. When such an objective is established, it proves that the meaning of the expression, in its entirety, was to achieve a persuasive effect on those to whom it was addressed. This is precisely what makes information material an illegal speech act. Therefore, negative assessments (opinions) addressed to followers of a certain religion (“godless,” “deluded, “will not go to Heaven,” “they betrayed God”) may be classified as extremist only when they are intended to form an attitude that approves of violent physical acts or justify the need for hateful or hostile attitude toward certain groups of people. Publicly expressed critical remarks regarding a religious movement, national customs, traditions etc. may not be classified as incitement of discord. 
- Methods of expert research on cases of information materials being recognized as extremist (Theoretical foundations and practical guidance). Saint-Petersburg, 2012.
- Yelizaveta Drenicheva has been recognized a prisoner of conscience, human rights activists demand her release (https://rus.azattyq.org/a/1370083.html)
- Brief guidelines to forensic philological review in cases of incitement of social, national, tribal, racial, class or religious discord. - Almaty, the International Foundation for Protection of the word “Әділ сөз”, 2019 (http://www.adilsoz.kz/publication/show/id/43)
- Methods of expert research in cases of incitement of social, national, tribal, racial, class or religious discord. - Almaty, “Әділ сөз”, 2019.