Myanmar v. The Bi Mon Te Nay Journalists
Closed Mixed Outcome
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On January 16, 2019, at a trial in the October District Court of Bishkek, the prosecutor’s office withdrew its request to assign the “extremist” label to two human rights NGO reports on 1) the rights of migrant workers and 2) the 2010 ethnic violence in Southern Kyrgyzstan. The case was brought by the NGO Bir Duyno-Kyrgyzstan, which co-wrote one of the reports, and which in March 2018, accidentally discovered a January 2017 court judgment that labeled the two reports extremist. The court judgment made illegal all production, dissemination, storage, and transportation of the reports online and offline. Furthermore, the Anti-Discrimination Center Memorial, a co-author of one of the reports, was banned from operating in Kyrgyzstan. Bir Duyno and the other NGOs involved in producing the reports were never notified of this development and appealed the judgment. Although the issue was resolved at the trial, the legal proceedings failed to identify the grounds for the authorities’ decision to label the NGOs’ reports extremist. Further, the proceedings highlighted that the relevant Kyrgyz legislation may violate internationally accepted norms on freedom of expression.
On January 5, 2017, the October District Court of Bishkek held that two human rights reports were extremists and incited inter-ethnic hatred in Kyrgyzstan. The first report was co-written by the Russian Anti-Discrimination Center Memorial and the Kyrgyz NGO Bir Duyno-Kyrgyzstan for the UN Committee on the Protection of the Rights of All Migrant Workers. The second report, titled “The Chronicles of Violence: the 2010 June Events in Southern Kyrgyzstan” was co-written by the Human Rights Defense Organization Memorial, Freedom House, and the Norwegian Helsinki Committee. The court banned all production, dissemination, storage, and transportation of the reports online and offline. Furthermore, the court banned the Anti-Discrimination Center Memorial from undertaking any activities in Kyrgyzstan.
Judicial and prosecutorial authorities failed to notify any of the concerned human rights organizations that their reports were being reviewed for extremism, nor about the subsequent court judgment. In March 2018, Bir Duyno accidentally discovered that the human rights reports were labeled extremist when it accessed the Ministry of Justice’s public list of extremist and banned materials in Kyrgyzstan.
On March 20, 2018, Bir Duyno requested a copy of the judgment from the October District Court of Bishkek. However, the court refused, explaining that the NGO was not a party to the lawsuit. Bir Duyno then requested a copy from the Ministry of Justice but on March 30, the Ministry responded that it could not provide the NGO with a copy of the judgment since it did not possess the judgment. Further, on March 28, Bir Duyno spoke on the phone with representatives of the Government Committee for National Security who explained that the judgment was labeled as “For Official Use Only” and thus could not be shared. Eventually, on May 15, 2018, after repeat requests, Bir Duyno received a copy of the judgment from the Ministry of Justice.
At the end of May 2018, Bir Duyno filed an appeal with the Bishkek City Court. The appeal however, was rejected on the grounds that the appellate period had passed. The NGO appealed the Bishkek City Court decision to the Supreme Court. On October 22, 2018, the Supreme Court overruled the January 5, 2017, judgment and ordered the Octyabrskiy (October) District Court of Bishkek to hold a new trial. The Supreme Court Judgment also restored the ability of the Anti-Discrimination Center Memorial to operate in Kyrgyzstan.
On December 17, 2018, the appellate trial at the Oktyabrskiy District Court of Bishkek began but was immediately delayed until December 28 due to the prosecution’s request to allow the Ministry of Interior and the State Committee on National Security to appear at the trial and explain its reasoning for assigning the “extremist” label to the two human rights reports. On December 28 the court once again delayed the trial until January 16, 2019, because it had not yet been authorized to review “For Official Use Only” documents related to this case.
On January 16, 2019, at the start at the Oktyabrskiy District Court of Bishkek, the prosecutor’s office submitted a motion to withdraw its request to assign the “extremist” label to the two human rights reports about the rights of migrant workers and the 2010 ethnic violence in Southern Kyrgyzstan. The prosecutor did not outline its reasons for the withdrawal, but simply stated that it needed to clarify the request’s requirements.
The court explained that under the Civil Code of the Kyrgyz Republic, a prosecutor, on his/her own volition, may request the judiciary organs to declare information extremist, if such materials incite or justify terrorist or extremist activities.
The court then clarified that article 222 of Kyrgyz Civil Code allowed a plaintiff, in this case the prosecutor, to withdraw its request, as long as a defendant did not demand to hold a hearing on the merits of the request. Bir Duyno wanted to hold a hearing on the merits, but the court held that under article 261-2 of the Kyrgyz Civil Code, the NGO was an interested party to the case but not a defendant, and thus could not demand a hearing on the merits. The court did not clarify its legal reasoning for making this conclusion.
Hence, the court granted the prosecutor’s motion to withdraw the prosecutor’s request to declare the NGO reports extremist, to ban their dissemination in Kyrgyzstan, and to prohibit the activities of the Anti-Discrimination Center Memorial in the country.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The judgment is a partial victory for Bir Duyno and the NGOs involved in this case. The legal proceedings led to the removal of the extremist label from the two human rights reports and restored the ability of the Anti-Discrimination Center Memorial to operate in Kyrgyzstan. However, Bir Duyno has been unable to shed light on why the government targeted the two reports. Further, the proceedings highlighted gaps in Kyrgyz legislation to notify organizations that their work has been labeled extremist and to appeal such labels. These gaps make it almost impossible for organizations to foresee their actions, and point to a potential violation of the legality prong of the internationally accepted three part test used to assess limitations on freedom of expression.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
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