Forensic expert review as a tool of prosecution for religious beliefs

Our many years of experience in linguistic research of information materials in cases of incitement of hatred, our review of legal practice and observations of judicial practice on such cases, our participation in the development of expert methodologies for this category of cases, all this has enabled us to arrive at certain conclusions of application of a “special” approach in how forensic reviews are appointed and executed. Let’s take a closer look at our observations using the example of the “Nine Muslims case.”

The pre-trial investigative body (the Almaty City Investigative Administration of the Committee for National Security of the Republic of Kazakhstan) appointed expert reviews, two in religious studies, and two in political sciences. Let us ask ourselves this question: what specific facts that were significant for the case need to be established which required special knowledge in religious studies and political science?

Two religious expert reviews were conducted at the Almaty Institute of Forensic Expertise by an expert-scholar in religious affairs who was asked to opine on two questions: What religious trend or direction do the ideas presented in the materials belong to? Do the submitted materials contain propaganda of religious radical views? The answers and opinions that were given to the questions were as follows: “the texts of the presented materials contain the ideas of the Salafi trend in the Wahhabi direction (within the Sunni theology in Islam);” “the texts of the presented materials promote religious and radical views.” What the religious studies expert reviewed was a compilation of “screenshots, a total of 6220 files” of a thread in WhatsApp.

We strongly believe that taking into account the objectives put (questions raised) to experts to opine on in cases brought under Article 174 of the Criminal Code of the Republic of Kazakhstan, it is unpractical to have a religious expert review since the religious affiliation of an accused individual and his/her ideology is determined from the onset and establishing the religious affiliation of the accused may not be something that is legally significant for the case. (As a matter of fact, the case is brought forward and the believer is arrested because he is not “of our own” (non-traditional) but an “alien” Muslim. It is hard to imagine a situation of traditionalist Muslims (followers of the Sunni Hanafi Madhab) exchanging materials on various theological topics and criticizing the Sunni Salafis in a WhatsApp chat and being detained and arrested for that).  Conducting religious studies and reviews which imply a broadly general assessment of a large array of materials, normally lies within the scope of competence of the Committee on Religious Affairs under the Ministry of Information and Social Development of the Republic of Kazakhstan which, according to the Law of the Republic of Kazakhstan “On the Religious Activity and Religious Associations,” approves the rules for conducting religious reviews, determines the grounds on which they are carried out, etc. The Committee on Religious Affairs conducts religious expert reviews as a condition precedent when making decisions on registration of religious associations; on receipt of religious literature, other information materials of religious content into the library funds of organizations in Kazakhstan; when importing religious literature, information materials of religious content, in the manufacture, release and distribution of religious literature, etc. In short, any religious literature that is imported or published, must undergo a religious expert review before it reaches its recipients.

For the purpose of case proceedings under Article 174 of the Criminal Code, there is no need for a religious expert review of the predetermined outcome. Neither Salafism or Wahhabism, being movement and teachings in Islam, are banned in Kazakhstan. According to Article 3, part 6 of the Law of the Republic of Kazakhstan “On the Religious Activity and Religious Associations,” “everyone shall have the right to adhere to his own religious or other beliefs, and to disseminate such beliefs...”;  according sub-clause 1 clause 8 of the same article, “following the principle of separation of religion and religious associations from the state, the state: 1) shall not interfere in the determination by citizens of the Republic of Kazakhstan... of their relation to religion, as well as their religious affiliations.” There is also no need to conduct religious expert reviews with respect to the said questions because they contain no analysis of the religious content of the specific 19 controversial texts which, along with a linguistic analysis, would make it possible to establish an entire array of facts based on historiography, dogmatic, doxography of Islam which would have a significance for this case, and would allow for clarification of certain fragments of the text that contain non-textual information of religious nature. In the case of “Nine Muslim Salafis,” a comprehensive expert review should have included an expert on Islam along with an obligatory linguist.

In this case, the Almaty city department of the Committee for National Security prescribed and carried out two religious and two political science expert reviews in Almaty.

Here are the errors made by the investigative body when those expert reviews were appointed. First, an expert review of a type that does not exist was prescribed. The List of types of forensic expert reviews that are carried by the forensic examination bodies of the Republic of Kazakhstan, there is no such type of examination as a political science examination. Second, the matters of a legal nature are put forward for resolution by political science experts. Political science experts were asked to opine on four issues, and we will quote the first three of them: (1) Do the statements and content at issue contain expressions and thoughts aimed at inciting social, national, clan, racial, class or religious discord, at insulting the national honour and dignity or religious feelings of the citizens, as well as propaganda of exclusivity, superiority or inferiority of the citizens based on their affiliation with a religion, class, nationality, tribe or race? (2) Do the texts and content at issue contain any calls for violent overthrow or violent retention of power in violation of the Constitution of the Republic of Kazakhstan, or calls to undermine the state security or forcibly change the constitutional order of the Republic of Kazakhstan? (3) Do the texts and content at issue contain propaganda of terrorism or calls to commit acts of terrorism?

Instead of a motivated refusal to issue an expert opinion, the experts take it upon themselves to independently establish the author’s objective in inciting hatred, or whether the text contains propaganda of terrorism, etc. For instance, here is the opinion of political science expert G.I. Mukhatayeva which represents the legal wording of the definition of a crime: “The texts of user messages (...) contain the elements of incitement of religious discord. The messages (...) contain the elements of propaganda of exclusivity, superiority and inferiority of the citizens based on their affiliation with a religion. The statements (...) contain the elements of offense to the religious feelings of the citizens.” The opinion of another expert, R.A. Akbarova, shows a similar pattern: “A political science analysis shows that the content of the texts... contains statements aimed at inciting national discord”; “The content of the texts... has the elements of propaganda of terrorism...”. (With such conclusions, there is no need in having a trial, just send them straight to prison!) Legal questions that pertain to an act whose resolution belongs in the realm of exclusive competence of a body that carries out the investigation, or a prosecutor, or a court, should never be put before such an expert.

Third, the preliminary investigation body has problems determining the type of expert examination that is required to resolve the issues at hand. Since the questions put to experts are of a legal character, the investigative body should have determined what facts were necessary to be established to resolve the case on its merits, and what special knowledge was required to do so. As mentioned above, a legal assessment of incitement of discord as a speech act of extremist nature depends on the content of information that has been disseminated, and is impossible without the content of such information being assessed and the semantic direction of the message being established. The main method of establishing the verbal language units and constructions that fall within the definition of the offense at issue, is a linguistic (not political science) analysis of the content-semantic and formal sides of the speech product.

For reference: in Russia, in the cases of incitement of hatred or discord (Article 282 of the Criminal Code of the Russian Federation), they prescribe a forensic linguistic examination or a multi-aspect psychological and linguistic examination with the help of a scholar in religious studies, not a political and religious examination. [1]

The expert methodology contains the following questions that are recommended to be posed when conducting an expert examination of information on cases of crime under Article 174 of the Criminal Code of the Republic of Kazakhstan, and that will enable the experts to document the important semantic features of information materials and arrive to an unambiguous conclusion as to the nature of the information disseminated.

- Do the materials presented for review contain the elements that substantiate or justify the need for a hostile, hateful attitude toward people based on their social, national, tribal, racial, class or religious affiliation?

- Do the materials presented for review contain the elements that substantiate or justify the need to carry out aggressive, violent acts against individuals based on their social, national, tribal, racial, class or religious affiliation?

- Do the materials presented for review contain calls for aggressive, violent acts against individuals based on their social, national, tribal, racial, class or religious affiliation? [2]

In an expert review of information on cases of propaganda of terrorism (Article 256 of the Criminal Code), it is recommended that the following question is asked: Do the texts presented for review contain the elements that substantiate or justify the need to carry out explosions, arson and/or other acts posing threat of death of people or causing property damage?

Based on the foregoing, a question arises: if conducting a religious and political science review under Articles 174, 256 of the Criminal Code is unfeasible and does not meet the main objective of a forensic examination in general—that is, providing an analysis of material objects by an expert in order to establish factual data that have a significance for a correct resolution of the case—then why are all these examinations still conducted? At present, no unambiguous and categorical answer seems possible; one can only make assumptions. One possible interpretation of the issue comes to mind when one familiarizes himself with an excerpt from a court verdict in the “Nine Muslims” case, the first two paragraphs of the narrative part of the verdict (the subjects of the sentences are marked in bold, the punctuation of the original source is preserved. – author).

On 29 June 2014, Abu Bakr Al-Baghdadi, the leader of the left wing of the international terrorist organization Al-Qaeda, after a violent and armed occupation of the cities of Mosul, Al-Raqqa, Deir ez-Zaur, Sirte, and Palmyra, which had previously been an integral part of the territories of the Syrian Arab Republic (SAR) and the Republic of Iraq, without being recognized by the international diplomatic community and without the consent of the Muslim World Spiritual Council and the Union of Islamic Scholars, unilaterally proclaimed the land and territory seized by his militants and recruits the world Islamic State with a Sharia form of government, after which, in order to concentrate secular and spiritual power over the Muslim community and society, declared himself its theocratic ruler, the Caliph.

By a judgment of the Yessil District Court for the city of Astana of 15 October 2015, the activity of the Islamic State, other... activity within the territory ...

After reading this initial part of the narrative part of the verdict, everything falls into place. We will not discuss the contents of the narrative and declarative part of the guilty verdict (Article 397 of the Code of Criminal Procedure of the Republic of Kazakhstan). Apparently, the quoted passage points at the guilt and motives in committing criminal offenses by the nine Muslims which had been found to be proven. Only where is it—this logical, semantic connection between a simple appeal by Muslim Ye. Samatov addressed to the group members (coreligionists) asking them a question that bothered him (which was, whether or not he should continue to visit the mosque where the namaz is conducted by a Sufi) and Al-Qaeda, ISIS and a terrorist leader? Where is the cause-and-effect relationship between the moment of bewilderment of Zh. Iskakov, a Muslim, when he saw a dhikr, a form of worship that is not traditional for Islam (a state of trance, a rhythmic movement in a circle, endless repetition of the name of Allah, etc.) and the criminal acts by a leader of international terrorists and organizations that are banned in Kazakhstan? A. Umbetaliyev, a Muslim, cites the warning by Shaikh Salih al-Fawzaan, a Saudi Islamic theologian and legal scholar, that innovations (bida'a) pose a threat to the Muslim Ummah. Where is the logical connection between this warning and, again, the activities of the leader of Al-Qaeda and ISIS, or a judgment of the Yessil District Court in the city of Astana? We can continue to ask such questions, and answers will be unambiguously negative and undeniable. A study of the contents of the text of the verdict and aforementioned excerpt lends itself to an obvious answer as to why the investigation still uses and the court still admits such “non-working” expert reviews as the baseline for a guilty verdict—which is, they use them as an instrument of suppression of religious dissent.

An expert in religious studies, in answering the first question (What religious movement, direction do the ideas presented in the materials belong to? - The texts of the presented materials contain ideas of the Salafi trend of the Wahhabi direction (within the Sunni theology in Islam) and having determined the ideological affiliation of the religious information contained in the materials presented, provides a description of such information. An expert in religious studies provides information of an encyclopaedic, reference nature which offers a holistic scientific understanding of Salafism and Wahhabism (which is an integral part of Salafism) as the various forms in which Islam exists, and lists the topics covered by the presented materials. In other words, by answering the first question the expert provides neutral scientific and reference information on the topics and ideas of the presented materials, which results in a conclusion which also contains no negative components of the significance of these trends in Islam. The conclusion states only the presence of ideas that are characteristic of the Salafi movement in Wahhabi Islam, which follows from the intermediate conclusion itself: “The texts of the files presented for review contain the ideas of the Salafi movement in Islam (of Wahhabi type) which are characterized by the following: a strict monotheism (tawhid) and reverence for Quran; following the views and prescriptions of the early-era Muslim theologians of the Hanbali school” (page 5 of the opinion). D.R. Musian, the expert in religious studies, confirmed the neutral and descriptive nature of her opinion on both the first and second issues at a questioning during the trial.

The expert also answers in the affirmative to the second question (Do the presented materials contain propaganda of radical religious views? - The texts of the presented materials promote radical religious views). The expert provides definitions of interrelated concepts of “religious radicalism,” “religious radical views,” and lists the elements that characterize those phenomena. The expert writes: “The authors of the texts in the WhatsApp group are transmitting information in which the idea is preached of the exclusivity of “true” believers and the inferiority of sectarians, heretics, wanderers, and infidels. The exclusivity based on ideological reasons is expressed in the superiority and difference between the believers themselves (representatives of the Salafi trend) and infidels (representatives of the Kalam school, Jews, Christians, Sufis, polytheists, pagans, etc.) the in matters of worship, faith, compliance with norms and religious precepts.” Those elements of information contained in the text of the correspondence are similar to preaching as a way of dissemination of faithful and religious and moral ideas of a religious movement (of traditional Islam, “pure faith”) (page 8 of the opinion). Proclaiming the exceptional truth of the preached religion by clergy and believers is an inalienable part of any confession. In this regard, V.A. Mishlanov notes: “The issue of qualification of texts in a church-religious discourse is exacerbated by the fact that a propaganda of any faith as the only truthful one (i.e. propaganda of the exclusivity of adherents of such faith) is the necessary element in the ideological (pastoral, preaching) activity of clergymen, their professional duty; however as a matter of fact such propaganda at the same time professes the inferiority of other faiths (or a different version of the same faith, branded as heresy or sect)” [3, pp. 62-69]. These factors are taken into account when a decision is made to implement in the religious texts the propaganda of exclusivity in the legal sense, through the creation of an enemy image in the adherents of other confessions. In relation to an enemy that could be in the form of a certain national, religious group or individual members of such a group, a negative image should (may) be formed which would incite to restricting their rights or to violent, physical acts toward them. This is precisely the element of incitement of discord that is qualified as the element of a crime punishable under Article 174 of the Criminal Code, and this is precisely this element that is not present in the semantic composition of materials in the “Nine Muslims” case. Therefore, it is necessary to distinguish between information radicalism and information extremism, the latter being “a form of speech influence that causes public harm by inflicting express moral damage on the object of speech aggression—which might be any national, racial, religious, or social group. The goal of an extremist speech activity is to promote a hostile and hateful attitude toward a person, stir up violence against a person which is expressed in substantiating and justifying or a public threat of harm to health, economic or political damage, in calls for psychological or physical violence, murder of a person or a group of persons based on changeable or unchanged characteristics” [4, p. 125].

Unfortunately, in answering the second question the expert in religious studies does not provide information on various levels of Islamic radicalization that would have a significance for the resolution of the case. Islamic radicalism in general is understood as an ideological doctrine and political practice based thereon (a certain method, methodology and means to influence policies), implemented both within the framework of the methods that are legal in a particular country, and without such framework. In modern literature, they distinguish between two streams of Islamic radicalism: the “moderately radical” (“moderate”) stream, characterized by the adherence to a fundamentalist religious ideology, and “ultra-radical” (“extremist”) stream whose followers transform the religion or faith into an ideological instrument that justifies violence in any form and manifests itself as extremism and terrorism. [5, p.18]

The followers of the moderately radical stream have the following general traits: they reject violence as a means of achieving political goals; they recognize secular regimes as legitimate; they are open to compromise with those secular regimes; they use propaganda as the main method in implementing the “Islamic appeal,” etc. While the ideology and political practice of moderate radicalism do not project an unambiguously negative or positive meaning, “extremism” and “terrorism” being at the extreme of the radicalism spectrum, always have a negative connotation. Their political practice, as a rule, is done in secrecy, especially in terrorism. It follows that the notion of “Islamic radicalism” should not be reduced to narrower phenomena such as “extremism” and terrorism.” In practice, this results in reduced opportunities for political manoeuvring in the fight against radicalism, and use of power is given preference instead. [5, pp. 18-19]. This latter situation is observed in the investigation of the “Nine Muslims” case and the relevant court verdict. In special literature, they note the vicious practice used by state authorities “in relation to radical Islam, which sometimes is identified with extremism and terrorism for no apparent reasons, and is predominantly of prohibitive nature. Moreover, those Muslims who while they share the theoretical views of the Wahhabi ideology have nothing to do with the acts of terrorists also fall under the prohibitive, punitive actions of law enforcement agencies.” [6]

Therefore, the conclusion of religious expert review has a neutral statement-like character and may not be interpreted by the investigative body and court of law as facts that establish the guilt of the nine Muslims in engaging in extremist and terrorist activity. In particular, the fact that B. Nurgaliyev, a Muslim, as well as other individuals convicted in the “Nine Muslims” case, belonged to a radical trend of Islam such as Salafism, the fact they were engaged in the propaganda of the Salafi ideas (which is equal to the notion of “missionary work”), their discussions of religious topics, Salafi ideas (of the Wahhabi type) within a group of co-religionists, may in no way be considered as proof of their criminal activity.

Article 174 of the Criminal Code, when used in such a way, also becomes an instrument of persecution of believers on the basis of their religious beliefs, and this is unacceptable and should be considered as restriction of freedom of religion.   An apolitical puritan Salafi who preaches “pure” Islam, distributes, discusses those beliefs (including among his co-religionists, as was the case in the above discussed case of “Nine Muslims”), rejects the use of force, urges his fellow believers to unquestionably submit to the state power, should not be subject to criminal persecution for his religious beliefs.

References

  1. M.L. Podkatilina. Forensic linguistic expert review of extremist materials: a monograph. - M.: Yurlitinform, 2013.
  2. Methods of expert research in cases of incitement of social, national, tribal, racial, class or religious discord. – Centre for Legal Expertise under the Ministry of Justice of Kazakhstan, 2019; Brief guidelines to forensic philological expert review in cases of incitement of social, national, tribal, racial, class or religious discord. - Almaty, International Foundation for the Protection of Freedom of Speech “Adil Soz”, 2019 (http://www.adilsoz.kz/publication/show/id/43)
  3. V.A. Mishlanov. The legislation of the Russian Federation on extremism and the objectives of linguistic expert review of texts // The Perm’ University Bulletin. – Series “Russian and foreign philology” – 2012 – Issue no.3 (19).
  4. Expert research in cases of acknowledging information materials as extremist: theoretical foundations and methodological guidance (a scientific and practical publication) / S.А. Kuznetsov, S.M. Oleinikov. – 2nd edition, corrected and amended - M.: V. Em’s Publishing House, 2014.
  5. I.P. Dobayev. Islamic radicalism: essence, ideology, political practice: author’s abstract, PhD thesis. - Rostov-on-Don, 2003
  6. R.M. Yemirov. Why political Islam is popular in the North Caucasus // Russia and the Muslim world, issue no. 9, 2011.

R.D. Karymsakova