Commissioning of expert evidence procedures on identification/definition of extremism in religious materials under the legislation of the Kyrgyz Republic

1. Liability for Acts related to extremist materials under the legislation of the Kyrgyz Republic

The Law of the Kyrgyz Republic “On Freedom of Religion and Religious Organizations in the Kyrgyz Republic” prohibits the import, production, storage, transportation and distribution of religious literature, other printed, audio-video materials, which contain calls for a change in the constitutional order, religious intolerance and moral foundations of society (part 2 Article 22).

Import, production, acquisition, transportation, transfer, storage and distribution of printed publications, film, photo, audio and video products and other materials containing ideas of religious extremism, separatism and fundamentalism entail liability in accordance with the legislation of the Kyrgyz Republic (part 8 Article 22).

The Law of the Kyrgyz Republic “On countering extremist activity” (Article 13) provides that liability must arise for “storage with the aim of further distribution” of these materials. The Criminal Code of the Kyrgyz Republic (Criminal Code of the Kyrgyz Republic), which entered into force on January 1, 2019, establishes criminal liability for “the production, distribution, transportation or transfer of extremist materials, or their acquisition or storage for distribution, the use of symbols and attributes of extremist organizations, and through the Internet” (Article 315), in contrast to previously existing Criminal Code of the Kyrgyz Republic (revised in 1997), which provided for punishment for “storage” of extremist materials, regardless of the purpose of their distribution (Article 299-2).

Simultaneously, the Article 13 of the Law of the Kyrgyz Republic “On countering extremist activity” indicates that persons found guilty for illegal production, distribution, transportation and storage for the further distribution of these materials shall be brought to administrative or criminal liability. In connection with the entered new Codes from January 1, 2019, the criminal liability occurs only for committing a crime, where the new Misdemeanor Code and the Code of Offences have no criminal liability herein; administrative liability for committing an administrative offense as such is no longer exist in the legal system of the Kyrgyz Republic.

1.1. The list of acts included into extremist activity as “extremism”.

The Law of the Kyrgyz Republic “On countering extremist activity” (part 1 Article 1) applies the term “extremism” and in brackets lists out  the acts included into extremism equally with the term “extremist activity”, in particular:

1) activities of public associations or religious organizations or other enterprises, organizations and institutions, as well as the media, regardless of their form of ownership, or individuals in planning, organizing, preparing and performing actions seeking to:

  • forcible changing of the foundations of constitutional order and violation of integrity of the Kyrgyz Republic;
  • undermine the security of the Kyrgyz Republic;
  • seize or usurp power;
  • create illegal armed groups;
  • carry out terrorist activities;
  • incite racial, national (interethnic) or religious hatred, as well as social hatred associated with violence or calls for violence;
  • humiliate national dignity;
  • conduct mass riots, hooligan actions and acts of vandalism based on ideological, political, racial, national (ethnic) or religious hatred or enmity, as well as based on hatred or enmity against any social group;
  • promote the exclusivity, superiority or inferiority of citizens based on their attitude to religion and social, racial, national (ethnic), religious or linguistic affiliation;

2) propaganda and public display of Nazi attributes or symbols, or attributes or symbols similar to Nazi attributes or symbols to the extent of confusion;

2-1) propaganda of attributes or symbols of extremist organization;

3) public calls to execute the specified activity or commit the specified actions;

4) financing of specific activity or provision of other support to execute it or commitment of specified actions, including by providing financial resources, real estate property, educational, printing and material and technical base, telephone, facsimile and other types of communication, information services and other materials and technical means.

By that, extremist activity (extremism) within the meaning of the Law envisages acts prohibited by law, that is, acts provided for by the norms of the criminal law.

1.2. List of acts of extremist nature.

Since the Criminal Code of the Kyrgyz Republic and the Code of Misdemeanor of the Kyrgyz Republic (COM) have no definition of the concept “crime or misdemeanor of extremist nature”, therefore, the classification presented below (note: the proposed classification is conditional and may be supplemented/changed) for this category of crimes/ misdemeanors is based on characteristics included in wording of extremist activity (extremism) in accordance with the Law of the Kyrgyz Republic “On countering extremist activity”. This classification is stem from the list of Articles of the Criminal Code of the Kyrgyz Republic, which are provided in the Review of judicial practices of criminal cases on terrorism and extremism (note: see the Resolution of the Plenum of the Supreme Court of the Kyrgyz Republic No. 8 dated June 15, 2016 // Bulletin of the Supreme Court of the Kyrgyz Republic No. 2 (63) 2016. P.32 / The e-version is available at: http://admin-sot.sot.kg/public/sites/4/2018/02/byulleten_263_2016.pdf).

Depending on established evidences in characteristics provided for in the first part of Article 1 of the Law of the Kyrgyz Republic “On countering extremist activity”, the following articles of the Criminal and the Criminal Procedure Codes of the Kyrgyz Republic may be classified as crimes / misdemeanors of extremist nature:

1) the activities of public associations or religious organizations or other enterprises, organizations and institutions, as well as the media, regardless of their form of ownership, or individuals when planning, organizing, preparing and performing actions that seek to:

    1. forcible change the foundations of constitutional order and violation of the integrity of the Kyrgyz Republic - Article 310 “Public calls for forcible seizure of power”; Article 311 “Separatist activity”, Article 312 “Armed rebellion” of the Criminal Code of the Kyrgyz Republic (CC KR);
    2. b) undermine the security of the Kyrgyz Republic - Article 307 “High treason”; Article 308 “Espionage”; Article 316 “Disclosure of state or military secrets”; Article 317 “Loss of carriers of information containing state or military secret”; Article 318 “Transfer or collection for the purpose of transferring information to foreign organizations that constitute official secret” CC KR;
    3. seizure or appropriate the power - Article 309 “Forcible seizure of power CC KR;
    4. create illegal armed groups - Article 250Creation or participation in illegal armed groupCC KR;
  • carry out terrorist activities - Article 239 “Act of Terrorism”; Article 242 “Public calls for terrorist activities”; Article 243 “Participation of a citizen of the Kyrgyz Republic in armed conflicts or hostilities on the territory of foreign state or undergoing terrorist training”; Article 244 “Hostage-taking”; Article 245 “Seizure of buildings and structures”; Article 246 “Knowingly false information about an act of terrorism” CC KR;
    1. incitement of racial, national (interethnic) or religious discord, as well as social discord associated with violence or incitement to violence - Article 313 “Incitement of racial, ethnic, national, religious or interregional hatred (discord)”; Article 314 “Creation of extremist activity” CC KR;
    2. humiliate national dignity - Article 313 “Incitement of racial, ethnic, national, religious or interregional hatred (discord)”, Article 314 “Creation of extremist activity” CC KR;
    3. carry out mass riots, hooligan actions and acts of vandalism on the grounds of ideological, political, racial, national (ethnic) or religious hatred or enmity, as well as on the grounds of hatred or enmity against a social group - Article 264 “Mass riots”, Article 266“ Hooliganism ” of the Criminal Code of the Kyrgyz Republic; Article 119 “Petty hooliganism” and Article 120 “Vandalism” of Code of Misdemeanor (CoM) of the Kyrgyz Republic (note: the above articles in the Criminal Code of the Kyrgyz Republic and the Code of Misdemeanors do not contain the motive of religious or other hatred/discord; however, the court may take into account the commission of an offense based on racial, ethnic, national, religious or interregional enmity (hatred) as an aggravating circumstance in accordance with paragraph 2 part 1 of Article 75 of the Criminal Code of the Kyrgyz Republic and paragraph 9 part 1 of Article 53 of the Criminal Procedure Code of the Kyrgyz Republic).
  • propagade the exclusivity, superiority or inferiority of citizens based on their attitude to religion, social, racial, national (ethnic), religious or linguistic affiliation - Article 313 “Incitement of racial, ethnic, national, religious or interregional hatred (discord)”; Article 314 “Creation of extremist activity” CC KR;

2) propaganda and public demonstration of Nazi attributes or symbols, or attributes or symbols similar to Nazi attributes or symbols to the extent of confusionboth CC KR and CoM KR do not contain Articles on this type crime;

2-1) propaganda of attributes or symbols of an extremist organization and 3) public calls for specified activity or commission of specified actionsArticle 314 “Creation of extremist activity”; Article 315 “Production and distribution of extremist materials” CC KR;

4) financing of specified activity or provision of other support to execute it or commitment of specified actions, including by providing financial resources, real estate property, educational, printing and material and technical base, telephone, facsimile and other types of communication, information services and other materials and technical means, including by providing financial means, real estate property, educational, printing and material and technical base, telephone, facsimile and other types of communication, information services, other material and technical means for specified activities - Article 240 “Financing terrorist activities”, Article 241 “Assistance in terrorist activities”.

1.3. Categories of extremist materials.

Establishment of signs of extremism is the most challenging to qualify the acts of extremist nature (extremist activity) in materials that are subject of a crime, since the evaluative nature of this feature, therefore one must clarify the concept of “extremist material”.

The Criminal Code of the Kyrgyz Republic (Criminal Code of the Kyrgyz Republic), as well as ineffective Criminal Code (as revised in 1997), does not contain a definition of the term “extremist material” and is used only in its Article 315 “Production and distribution of extremist materials”. Consequently, any person can be held liable for cases related to production and distribution of extremist materials only under this article.

Therefore, to determine the meaning of this term, one must refer to the Law of the Kyrgyz Republic “On countering extremist activity”, where Article 1 provides the definition of “extremist materials”, based on which two categories of sources intended for publication are recognized as extremist materials:

  1. documents or information on other carriers that call for extremist activities or justify or substantiate the need for such activities;
  2. publications that justify or substantiate the national (ethnic) and (or) racial superiority or jusify the practice of committing war or other crimes aimed at complete or partial destruction of any ethnic, social, racial, national or religious group.

The Article 13 of the Law of the Kyrgyz Republic “On countering extremist activity” further provides that publication, storage, transportation and distribution of printed, audio, audiovisual and other materials containing at least one of the signs provided for in the first part of Article 1 are prohibited in the territory of the Kyrgyz Republic, and suggests that such materials include:

  1. official materials of banned extremist organizations;
  2. materials authored by persons convicted in accordance with international legal acts for crimes against peace and humanity and containing the signs provided for in part one of Article 1 of this Law;
  3. any other materials, including anonymous ones that contain the signs provided for in part one of Article 1 of this Law.

Within the meaning of other provisions in Article 13 of the Law above, it envisages that these materials are not indicated as “extremist”, but as prohibited information materials containing one of the signs of extremist activity according to the first part of Article 1 and established by court. The court recognizes “extremist” information materials with peculiarities in proceeding certain categories of cases at the place of their detection, distribution or location of an organization that produced such materials based on statement by prosecutor who made a request to declare the materials extremist, in particular in the manner prescribed by Chapter 25-1 Civil Procedure Code of the Kyrgyz Republic (CPC KR).

Two categories of materials are defined therefore within the meaning of Articles 1 and 13 of the Law of the Kyrgyz Republic “On countering extremist activity”:

    1. The first category are the tinformation materials recognized by the court as extremist in the manner prescribed by Chapter 25-1 of the Code of Civil Procedure of the Kyrgyz Republic at the request of prosecutor, falling under the criteria of “extremist material” definition provided for in Article 1 of the Law of the Kyrgyz Republic “On countering extremist activity”;
  • The second are the informational materials having at least one of the signs provided for by the first part of Article 1 of the Law of the Kyrgyz Republic “On countering extremist activity” and established by the court.

 

2. Peculiarities of procedures for recognition of materials as extremist or containing peculiarities of “extremism" under the legislation of the Kyrgyz Republic.

2.1. Procedures for recognition of materials as “extremist”.

The recognition of category I materials – the court recognizes the information materials as extremist according to the Law of the Kyrgyz Republic “On countering extremist activity” with peculiarities in proceeding certain categories of cases at the place of their detection, distribution or location of an organization that produced such materials based on statement by prosecutor who made a request to declare the materials extremis.

Chapter 25-1 of CPC KR regulates the specified peculiarities of proceedings. This chapter under CPC KR in its Articles 261-1, 261-2, 261-3 provides for procedures to file and review an application, make a decision by the court and its execution. The specified categories of cases may not be considered in the order of special proceedings and must be reviewed in the procedure of action proceedings.

According to Article 261-1 of CPC KR, the prosecutor, within the limits of his/her competence, shall have the right to apply to the court for recognition of information materials as extremist or terrorist.

In accordance with Article 28 of CPC KR, the district court (district court in the city and city court) has jurisdiction over all civil cases, except for cases within the jurisdiction of administrative court. Article 15 of APC KR, which establishes the jurisdiction of categories of cases to administrative court, does not contain this category of cases. Accordingly, cases on recognition of information materials as extremist or terrorist fall within the jurisdiction of district courts. Territorial jurisdiction is determined by the place of detection, distribution or location of an organization that produced extremist materials.

According to part 2 of Article 261-2 of CPC KR, the claim is considered by the court with the participation of prosecutor who made the request, and persons indicated in claim, if their location is known, i.e. the parties to the case shall be the prosecutor and person indicated in the claim. Therefore, the prosecutor, when preparing a statement of claim, must determine the list of persons whose rights and legitimate interests may be affected by court decision, and indicate them as defendants.

Who may act as defendant: these are the author, publisher, publisher, distributor, provider, social network administrator, etc. Accordingly, each party must prove the circumstances to which it refers as grounds for its claims and objections. After the commencement of proceedings on the case at the request of prosecutor, the court, in order to secure the claim, has the right to temporarily limit the access to information materials before decision-making (part 2 of Article 261-1 of CPC KR).

The statement of claim made by the prosecutor must be reviewed by court within three days from the date of its receipt. In cases where the facts contained in the claim require additional validation, the decisions must made no later than within five days (Article 261-2 of CPC KR).

The court decision may be appealed in the manner prescribed by Chapter 40 of CPC KR, that is, if parties disagree with the court decision, they shall have the right to appeal the court decision in cassation without appeal (part 2 of Article 351 of CPC KR).

In case of recognition of information materials as extremist, the court decision, which has entered into legal force, is sent to executive authority in the field of justice for publication (Article 261-3 of CPC KR).

The list of extremist materials is subject to periodic publication in the media, as well as on the official websites of authorized state bodies in the field of justice that counter extremist activities (Article 13 of the Law of the Kyrgyz Republic “On countering extremist activities”).

The decision to include materials into the list of extremist materials may be appealed in the court in accordance with the established procedures. Materials included in the list of extremist materials are not subject to distribution on the territory of the Kyrgyz Republic (Article 13 of the Law of the Kyrgyz Republic “On countering extremist activities”). Based on the meaning of provisions set forth in Chapter 25-1 of CPC KR, the decision to include materials into the list of extremist materials i.e. their publication, shall approved by executive authority in the field of justice based on court decision. Accordingly, the inclusion (publication) of any information material by justice authority may be appealed in court.

2.2. The procedure to establish the signs of extremism in information materials according to part 1 of Article 1 of the Law of the Kyrgyz Republic “On countering extremist activity”.

Establishment of signs that contain in information materials as provided for in part 1 of Article 1 of the Law of the Kyrgyz Republic "On countering extremist activities”, i.e. in the materials of category II shall also be made by court decision.

By court decision, the author and/or drafter of this material is recognized as person, who has performed extremist activities, holds liable in accordance with the procedures established by the legislation of the Kyrgyz Republic. In particular, according to articles of the Criminal Code and the Code of Misdemeanor of the Kyrgyz Republic, classification of extremism is given in section “1.2. List of acts of extremist nature”. Accordingly, the establishment of signs of extremism can be carried out within the framework of criminal proceedings in criminal cases and cases of misconduct when considering the categories of cases under the above articles of the Criminal Code and the Criminal Code of the Kyrgyz Republic.

The Law of the Kyrgyz Republic “On countering extremist activity” establishes that such materials include the following three types (Article 13):

  • official materials of banned extremist organizations.
  • materials authored by persons convicted in accordance with international legal acts for crimes against peace and humanity and containing signs provided for in part 1 of Article 1 of the Law of the Kyrgyz Republic “On countering extremist activity”.
  • any other materials including anonymous that contain signs envisaged in part 1 of Article 1 of the Law of the Kyrgyz Republic “On extremist activities”.

For the first type of materials, that is, the following conditions must be decisive in order to classify the material as “official materials of banned extremist organizations”:

  1. the entry into legal force of court decision in relation to an organization on which the court made a decision to liquidate or prohibit its activities in connection with extremist activities;
  2. the affiliation of information material to official materials of any banned extremist organization (availability of official attributes, symbols, name of extremist organization);
  3. when court establishes the signs provided for in part 1 of Article 1 of the Law of the Kyrgyz Republic “On countering extremist activity” in texts of official materials possessed by such organizations;

The following two conditions must be decisive for the second type of material, within the meaning of the norm itself:

  1. the authors of these materials must be persons convicted in accordance with international legal acts for crimes against peace and humanity
  2. when court establishes the signs provided for in part 1 of Article 1 of the Law of the Kyrgyz Republic “On countering extremist activity” in texts of official materials possessed by such organizations;

The third type of materials, i.e. any other materials, including anonymous that contain signs of extremism are all those materials that do not fall under paragraphs “a” and “b” of Article 13 of the Law of the Kyrgyz Republic “On countering extremist activity”. These can be all printed, audio, audiovisual and other materials (books, brochures, leaflets, videos, pages or the Internet website, files seized from a computer, etc.) containing at least one of the signs provided for in part 1 Article 1 of the Law of the Kyrgyz Republic “On countering extremist activity”.

2.3. What procedural measures must be taken depending on the category of information detected?

In case of detecting information materials with suspicion on extremism signs, it is first of all necessary to conduct an expert examination subject to their identity with materials already recognized by court decisions as “extremist” and included into the “list of extremist materials” by state authorities in the field of justice. If expert opinion establishes the identity and if other qualifying features are proved according to Article 315 of the Criminal Code of the Kyrgyz Republic that person may be held liable under this article.

If detected material is not identical with materials recognized as “extremist” and not included into the “list of extremist materials” by court decision, these materials with suspicion on signs of “extremism” must be handed to the prosecutor's office to take decision to file a statement of claim with the court on their recognition as extremist or terrorist in the manner prescribed by Chapter 25-1 of CPC KR. The criminal proceedings in relation to these materials must be terminated in the absence of crime events (paragraph 1 part 1 of Article 26 of the Criminal Procedure Code).

If court recognizes these information materials as extremist, its decision is to be sent to justice authorities for their inclusion into the list of extremist materials. In case of fact of their distribution and storage for further distribution of material from this list, only then a person may be prosecuted under Article 315 of the Criminal Code of the Kyrgyz Republic.

To date, the website of the Ministry of Justice of the Kyrgyz Republic has a “list of extremist materials” consisting of 22 items, from which 7 have name/ title of publication, where the rest are simply indicated as materials (publications, videos, photos, symbols, attributes) posted on the “Internet-resource” (note: see http://minjust.gov.kg/en/content/950). 

3. Forensic expert evidence on cases related to countering extremism.

3.1. Definition of forensic examination types in cases related to countering extremism.

Practically, in most cases, when identifying signs of extremism in any materials today, one can observe the assignment of religious or theological expert examination, which are often used as synonyms and accordingly represent a serious methodological error.

Despite both religious expert review and theology deal with religion, they are distinguished by the subject of investigation and applied approaches. Theology is firstly aimed at studying the deity itself, i.e., an object outside our reality since the understanding of God differs in every religion, and theology is always confessional. Consequently, there is no general theology - it always positions a certain religious doctrine: Muslim, Christian (Catholic, Orthodox and Protestant) or other doctrines. Religious studies, on the other hand, bases their understanding of religion on empirical material, that is, accessible validation of material and on strict rationalistic interpretation of data obtained.

If religious expert examination represents therefore an independent and objective research based on scientific principles and methods of research, theological examination is a view at the subject of research “from the inside” in a given religion, by virtue of which it has confessional and accordingly evaluative nature.

Religious expert examination tasks, first, include:

(1) Determining the religious / non-religious nature of an organization;

(2) Establishing the religious affiliation of an organization;

(3) Assessing the conformity of declared forms and methods of activities of religious organization during its registration/ re-registration, its actual activity (this is the task of state religious expert examination);

(4) Studying the organization's religious literature, which reveals value orientations, missionary calls and socially significant attitudes in order to differentiate calls of an extremist and non-extremist nature (as part of comprehensive psychological - linguistic examination).

(Note: see Methodological Guidelines for religious and comprehensive forensic psychological -linguistic expertise in the Kyrgyz Republic. The electronic version is available at: http://www.advocacy.kg/index.php/4263-3-aprelya-posobie-metodicheskoe-rukovodstvo-po-provedeniyu-religiovedcheskoj-i-sudebnoj-kompleksnoj-psikhologo-lingvisticheskoj-kpl-ekspertizy).

The Law of the Kyrgyz Republic “On freedom of Religion and Religious Organizations in the Kyrgyz Republic” enables to commit such type of expertise as expert religious examination and the legal expert religious and state religious examination is called for depending on objectives of performed religious expert evidence.

In perusing legal proceedings, the religious expert evidence may be called for and performed as an independent homogeneous expertise and as part of religious studies component in the framework of comprehensive expert psychological - linguistic evidence, since there is a need to establish facts linked to the content or thrust of texts (statements) in different categories of cases. The expert evidence, for instance, may be called for according to Article 314 “Creation of extremist organization”, Article 315 “Production and distribution of extremist materials” of the Criminal Code of the Kyrgyz Republic, on civil cases in connection with application of Laws of the Kyrgyz Republic “On countering extremist activities” and “On freedom of religion and religious organizations in the Kyrgyz Republic”, on administrative cases in connection with legal entities challenging various orders and warnings issued by state bodies, organs of local self-governance and their officials. Therefore, the call for comprehensive expert psychological - linguistic evidence along with religious examination in above categories of criminal cases is the most relevant examination.

3.2. Distinctive peculiarities of the state religious examination.

The procedure and conditions to perform the state religious examination (hereinafter SRE) are determined by the Law of the Kyrgyz Republic “On freedom of religion and religious organizations in the Kyrgyz Republic”. The SRE is conducted in order to establish the compliance of constituent and other documents of religious content, spiritual (religious) educational programs, information materials of religious content and religious items with the legislation of the Kyrgyz Republic based on the Law of the Kyrgyz Republic “On freedom of religion and religious organizations in the Kyrgyz Republic”. It is ordered by the state agency for religious affairs on behalf of the State Commission on Religious Affairs (hereinafter - SCRA), which reports to the President of the Kyrgyz Republic (Articles 10, 11, 12, 22 of the Law of the Kyrgyz Republic “On freedom of religion and religious organizations in the Kyrgyz Republic”).

The SRE is performed by religious expert group functioning under SCRA, which works towards formation and implementation of state policy in religious sphere and coordinates the activities of state bodies of the Kyrgyz Republic in the field of religions.

SCRA orders SRE in the following cases:

  1. when it receives an application for registration or re-registration of religious organizations, missions (representations) of foreign religious organizations (hereinafter referred to as missions);
  2. to make decision on suspension of missions,
  3. to make decision on production, acquisition, storage, import, export and distribution of religious literature and other printed, audio, video materials;
  4. at the time of handing over the religious literature for library stocks.

The SRE is mandatory when library stocks of the Kyrgyz Republic receive the religious literature (part 3 of Article 22 of the Law of the Kyrgyz Republic “On freedom of religion and religious organizations in the Kyrgyz Republic”).

The religious examination subject includes:

  1. constituent documents submitted for registration or re-registration of religious organizations and missions (representations) of foreign religious organizations;
  2. religious literature, other printed, audio and video materials;
  3. documents having religious content (documents defining the structure, foundations of mission's doctrine, religious practice, as well as documents characterizing the forms and methods of religious activity).

In case of detecting the signs of extremism, the SRE experts shall suspend the expert examination and notify the SCRA in writing, and SCRA further must transfer the notification to relevant competent authorities to perform comprehensive examination.

3.3. Comprehensive expert psychological - linguistic examination (CEPLE) in the frame of criminal cases related to countering extremism.

3.3.1. Practice related challenges.

When assessing the subjects of examination to detect the elements of extremism, experts are required to determine if activities of an organization run counter the purposes provided for in Article 1 of the Law of the Kyrgyz Republic “On countering extremist activities”. The same Law introduced a special type of examination such as to identify an extremist content in certain information materials and oral statements. For that purpose, the coordination expert committee is to formed, which regulation and composition subject to approval by the Government of the Kyrgyz Republic (paragraph 2 of Article 4). Within the meaning of this provision, the expert committee is authorized to examine all categories of cases for detecting extremist content in certain information materials and oral statements.

Despite the high demand, this committee was never created, and in practice all materials were sent to SCRA for religious examination. However, based on tasks of religious examination conducted by SCRA, the immediate detection of signs of extremist activity according to the Law of the Kyrgyz Republic “On countering extremist activity”, is not within its competence. The study of texts on cases related to countering extremism aimed at detecting the signs of extremism must be implemented by experts of various specialties and included into the tasks of comprehensive expert psychological - linguistic examination (hereinafter - CEPLE).

3.3.2. The concept and tasks of CEPLE.

CEPLE of texts on cases related to countering extremism is a type of forensic examination ordered during pre-trial or court proceedings when there is a necessity to establish the facts associated with the content or thrust of texts or statements:

1) on crimes or misdemeanors of extremist nature provided for by the Criminal Code and Criminal Procedure Code of the Kyrgyz Republic;

2) on administrative cases in connection with challenging by public associations or religious organizations of various orders and warnings issued by state bodies, organs of local self-governance and their officials;

3) on civil cases on recognition of materials as extremist / terrorist.

The tasks of CEPLE to examine the texts on cases related to countering extremism are to:

  • establish  the presence of calls for certain actions in the texts;
  • establish the presence of propaganda in the texts (national, religious, linguistic, racial, etc. superiority, exclusivity or inferiority);
  • establish the presence of justification or substantiation of extremist activity or terrorism in the texts;
  • establish the thrust of speech acts (text) to incite discord, hostility, hatred, humiliation of human dignity, insult a person based on certain grounds (gender, race, nationality, attitude to religion, etc.).

It should be borne in mind that legal assessment is not within the competence of experts and expertise. Experts can only indicate if there are signs of extremism, while law enforcement experts and the court are to provide legal assessment.

3.3.3. The role of linguist - expert.

Regardless of extremism nature (political, religious, ethnic, national, racial, etc.), it is the linguist expert (not philologist!) who plays the key role. The specificity of expert linguistic examination ordered on above criminal cases is that the results of linguistic analysis from content-semantic and formal aspects of speech act serve as a source of evidence of presence or absence of corpus delicti, i.e., the signs of objective side of a crime. It is the linguist, who can determine the following signs of extremism (appeal, propaganda of views, incitement to hatred, enmity, justification...).

3.3.4. The role of psychologist - expert.

Psychologist - expert analyzes the accompanying impact of text message. His/her tasks are to determine the definition of purposeful or neutral character, to identify the occurrence of any mental states accompanying the perception of text and consequences of such conditions and to detect the psychological impact of accompanying text messages in audio and video materials. In this case, any sources of information have to be used as visual, auditory and kinesthetic since they can have psychological effect on person - different in strength and thrust. A psychologist - expert is involved when conducting comprehensive examination, first of all, to analyze visual materials and the presence of psychological factors in them.

3.3.5. The role of religion scholar expert.

 

If the text is of religious origin, a religion scholar expert has to be included into the expert group to perform comprehensive psychological and linguistic examination, who will be able to determine the religious affiliation of materials under review and provide religious information on organization / group / material (history, doctrine, the nature of ideology, institutionalization, etc.).

Therefore, there is a need to commit a comprehensive psychological and linguistic examination with religious component (if material is of religious origin) when calling for an expert evidence in cases related to countering extremism, where:

  • The linguist defines what and how it is said (content and form);
  • The psychologist determines the thurst of statements and possible impact;
  • The religioun scholar determines which religion or religious movement the reviewed subjects belong to with a focus to the doctrine and cult.

Despite the fact that a linguist may identify propaganda of exclusivity in religious texts only comprehensive approach in performing expert evidence will enable to determine whether it is a wrongful by nature. In addition, extremist and terrorist organizations often refer to religious materials written in different historical periods in their argumentation to justify their actions. Since such literature was written in other conditions and pursued certain goals and audience, the researcher has to be very cautious when making an expert opinion to recognize such literature as extremist. This is the reason why different kinds of scriptures, such as the Quran, the Old and New Testaments, the Bhagavad-Gita, etc., may not be subjected to examinations.

3.4. The procedures and conditions for CEPLE to establish the signs of extremist activity.

3.4.1. Regulatory framework.

The procedures and conditions for expert evidence are determined in the Civil Procedure Code and the Criminal Procedure Code of the Kyrgyz Republic, the Laws of the Kyrgyz Republic “On forensic expert activity”, “On countering extremist activity”; Regulations on the State Forensic Expert Service under the Government of the Kyrgyz Republic; Regulations on the procedures and conditions for issuance and refusal to issue, suspension, termination and withdrawal of certificate of competence of a forensic expert of the Kyrgyz Republic; Regulation on expert qualification commission; Procedure for maintaining the State Register of Forensic Experts of the Kyrgyz Republic; Procedure for maintaining the State Register of Forensic Research Methods of the Kyrgyz Republic; Instructions on the performance of forensic examinations in the State Forensic Service under the Government of the Kyrgyz Republic, etc.

3.4.2. Subjects and objects of CEPLE.

Comprehensive expert psychological and linguistic evidence (CEPLE) is ordered in connection with proceedings in criminal, civil, administrative cases, etc. The procedures for ordering an expert evidence in civil cases are established in Articles 93-100 of the Civil Procedure Code of the Kyrgyz Republic, and for administrative cases in Articles 75-82 of the Administrative Procedure Code of the Kyrgyz Republic.

In accordance with part 3 of Article 172 of the Criminal Procedure Code of the Kyrgyz Republic, forensic (expert) examination of criminal cases may be entrusted and performed by:

1) public and (or) non-public experts;

2) on a one-time basis according to the decision of investigative judge, court, investigator, authorized official of inquiry body and other persons with special knowledge in the manner and under the conditions provided for by law;

3) persons from among those proposed by parties to the process with special knowledge, including those who are not citizens of the Kyrgyz Republic.

CEPLE is performed by the State Forensic Service under the Government of the Kyrgyz Republic (hereinafter - SFSG) and other forensic expert institution and experts in accordance with the legislation on forensic expert activity.

Requirements for forensic experts are established in the Law of the Kyrgyz Republic “On forensic expert activity”, the Article 14 particularly indicates that the public forensic expert, non-public forensic expert, or another person with the necessary special knowledge may act as forensic expert. Public and (or) non-public experts shall be the staff of forensic expert institution who performs forensic examination in the course of fulfilling his/her official duties.

Public forensic expert shall not be considered as civil servant except the experts from law enforcement agencies. A person involved in the case as forensic expert, who is not a staff member of any forensic expert institution, shall perform forensic expert examination to fulfill the instructions of the body (person) that appointed him/her, in accordance with the legislation of the Kyrgyz Republic.

Religious expert examination may not be entrusted to SCRA, since this agency is not authorized to perform examinations. However, the SCRA staff member may be involved as forensic expert in accordance with Article 178 “Expert examination outside forensic expert institute”, parts 1-7 of Article 321 “Production of expert evidence in court” of the Criminal Procedure Code of the Kyrgyz Republic and part 6 of Article 13 of the Law of the Kyrgyz Republic “On forensic expert activity”. In this case, the examination represents the opinion of specific expert, and not an authorized state agency.

CEPLE subjects include SRE objects, as well as the text on any carrier (paper, electronic device, it can be a file of any format that displays text), records of oral public statements (at meetings, in a TV show, at any other event), video films and movies, video clips displayed on any recording media (audio and video phonograms) and audio-visual products on the Internet, etc.

3.4.3. Grounds for appointing CEPLE.

Expert examination is assigned in cases where circumstances relevant to the case may be established through the study of materials conducted by an expert based on special scientific knowledge. Availability of such knowledge with other persons participating in criminal proceedings does not relieve the investigation judge, court, investigator and authorized official of inquiry body from the need to order an expert examination in appropriate cases (Article 171 of the Criminal Procedure Code of the Kyrgyz Republic).

Having found it necessary to call for expert evidence, the investigation judge, court, investigator and authorized official of inquiry body shall issue the resolution on examination, which indicates (Article 172 of the Criminal Procedure Code of the Kyrgyz Republic):

1) surname and name, position of the person called for expert evidence;

2) type of expert evidence;

3) the grounds for expert evidence;

4) information about the person referred to expert evidence;

5) subjects sent for expert evidence and information on their origin, as well as permission for possible complete or partial destruction of these subjects, change in their appearance or basic properties during the research;

6) initials of an expert or the name of expert institution where expert evidence is to be performed;

7) questions posed to expert.

If necessary to produce complex expert researches, they are performed by a commission of experts (expert panel evidence), and to establish the circumstances of the case based on the use of special knowledge related to different types of expert specialties or training profiles, the production of complex expert evidence is organized by entrusting to experts of relevant specialty areas.

3.4.4. Is it possible to legally challenge the forensic expert opinion?

The expert opinion shall not have a predetermined force (Article 76 of the Civil Procedure Code of KR, Article 55 of the Administrative Procedure Code of KR, Article 22 of the Criminal Procedure Code of KR), however, as practice shows, it can affect the outcome of the case. Therefore, if one of the parties to the dispute does not agree with the results of the expert opinion, that party must take immediate action to challenge it.

It should be borne in mind that challenging the expert opinion is impossible in itself. The dissenting party may only apply for additional or repeated research.

The assignment of additional expert evidence is relevant when the opinion of previous examination was unclear. Re-examination is prescribed when data is questioned as a whole.

The following number of reasons may be identified for challenging the expert’s conclusions:

  1. the facts of violation of procedural rights of the parties to proceedings when calling for and producing expert evidence, which influenced or could have influenced the content of the experts opinion;
  2. commission of actions by an expert that casts doubt on his/her objectivity and impartiality;
  3. inconsistency of the expert's qualifications with expert examnination tasks;
  4. contradiction in expert opinion with other evidences available in the case, in particular, the conclusion made by extrajudicial expert (specialist).

In this regard, there are four possible ways to challenge the expert evidence:

  1. reviewing the expert opinion,
  2. re-examination,
  3. participation in the process of specialist,
  4. summuning an expert.

Opinion reviewing is the most popular method in recent years. Procedural legislation enables a review process as a form of proof of one’s position. Such review may be considered as written evidence, and perceive the reviewer as specialist. Article 53 of the Civil Procedure Code of KR, Article 46 of the Administrative Procedure Code of KR, Article 60 of the Criminal Procedure Code of KR enables the participation of specialist in the process.

The expert opinion is reviewed to establish the reliability, correctness, validity and completeness of conclusions. The main criteria for reviewing the opinion:

  • compliance of the content of expert opinion with current legislation;
  • compliance with the established procedures for calling for and performing expert eveidence (including the competence of expert organization or institution and expert qualification);
  • validity, correctness and effectiveness of the application of appropriate research methods;
  • completeness and comprehensiveness of the research;
  • completeness and validity of opinions made by expert, etc.

As recommendation, it is advisable to submit the same number of reviews as the peer-reviewed expert opinion signed by experts (for example, if conclusions made by panel expert evidence that consist from 5 experts are under review, then reviews should be submitted from 5 experts of the same level).

Re-examination is possible only if there are compelling reasons and grounds to believe that the expert made a number of gross errors and reliability of examination causes serious doubts. Such situations do not occur often for a number of reasons. The main reason is that neither the Honorable Court, nor the Parties often have as deep knowledge as expert and for them it is quite difficult to evaluate the methods and its implementation techniques.

Specialist engagement in the process. According to Article 60 of the Criminal Procedure Code of the Kyrgyz Republic, the court may engage specialists to obtain advices, explanations and provide direct technical assistance. Practice shows that arguments in regards the completeness and correctness of examinations performed by a party or representative to the case, are not accepted by the court.

At the phase of expert evidence process on the case, the court review ends with the consideration of its merits and the court is ready to announce its decision. If one party to the case disagrees with the expert evidence results, the court may not take into account the arguments of that party, since they arise from a person who has no special knowledge. The dissenting party must take care of the appearance of a specialist in court.

The attendance of a specialist must be at the next meeting after receiving examination outcomes. This is necessary to provide the court with qualified explanations and advice. At the beginning of the court session, it is necessary to make a request to summon and interrogate a specialist.

A reviewer of forensic expert opinion may be involved as specialist. He/she will be able to provide the court with clarifications on the merits of expert opinion studied by him/her. The interested party must seek to completely reflect the questions before specialist and the answers in the minutes of the court session.

Summoning an expert shall be done in order to answer the questions that the party has in relation to his/her opinion. A reasoned motion is prepared for this procedural action.

In the petition to summon an expert, the research part i.e. opinion must indicate the specific details, which according to the party, were made with violations, particularly if they had contradictions, incomplete thoughts, illogicality, technical errors, typos and other details requiring clarification.

This is one of the most important details, since the correct formulation of questions may prove erroneous and call into question the evidentiary properties of expert's conclusion: relevance, admissibility, reliability or sufficiency. The result of expert's participation in the process allows: either, with competent questions, to challenge the conclusions of expert evidence, or, on the contrary, to strengthen the conclusions given by expert in the court conclusion.

3.4.5. Recommendations for challenging the expert opinion.

Let us assume that violations are found in forensic expert opinion, which result in doubts in relation to its evidentiary properties: relevance, admissibility, reliability or sufficiency. As practice shows, the chances that the court will agree with this and make a decision based on other evidence in the case are minimal.

Before taking measures to challenge the forensic expert opinion, it is necessary to determine the ultimate goal - what to petition the court due to violations revealed in the forensic expert opinion.

Procedural legislation (Article 98 of the Civil Procedure Code of KR, Article 80 of the Administrative Procedure Code of KR, part 9 of Article 321 of the Criminal Procedure Code of KR) provides two options:

1) re-examination.

2) additional expert evidence.

It is important to take into account that re-examination is called for in exceptional cases and the need for its assignment must be proved (for example, if significant violations in procedures for assignment or performance of expert evidence established by procedural legislation are revealed).

Therefore, one can use both options:

- petition for re-examination;

- separately (in case of rejection of the first petition) prepare a petition to call for additional expert evidence (on additional questions, in order to establish additional circumstances). Thorough scrupulous and professional questions prepared, the results of additional expert evidence can refute the expert opinion made earlier.

Important: all petitions, statements, explanations must be made in writing and motivated, especially if the party to the process requests the court to attach  the case file with evidences on the merits of the contested forensic expert evidence (review/reviews, independent expert opinion, and expert opinion).

Despite the importance of expert opinion in proving on the case, any opinion can be challenged in the following ways:

Procedure. The expert opinion must strictly comply with the requirements imposed on it by the legislation of the Kyrgyz Republic, in particular, these are the requirements in relation to grounds for expert evidence assignment, for personality of an expert, mandatory observance of the rights of interested parties and others.

Reasonableness. In this case, the expert's opinion is questioned by indicating the internal contradictions of the conclusion itself, its “unreasonableness” (no indication of the source of information), and so on.

Specialist’s conclusion. A specialist may be questioned to challenge the expert opinion in the court session. When assessing the research performed, the specialist can point to inappropriate techniques and methods of research selected and used, to outdated and incorrect sources applied to existence of contradictions in expert's opinion and more.

Submission of own expert opinion. The presence of two expert opinions, which conclusions are inversely contradicting to each other, makes it necessitates to call for a repeated expert evidence by the court.