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The Prosecutor General of Osh City v Rashod Kamalov

On Appeal Contracts Expression

Key Details

  • Mode of Expression
    Audio / Visual Broadcasting
  • Date of Decision
    October 7, 2015
  • Outcome
    Criminal Sanctions, Imprisonment
  • Case Number
    No. 317/15
  • Region & Country
    Kyrgyzstan, Europe and Central Asia
  • Judicial Body
    First Instance Court
  • Type of Law
    Criminal Law
  • Themes
    National Security
  • Tags
    Imprisonment, Extremist Speech, Religion, Terrorism, Hate Speech, National Security, Incitement

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Case Analysis

Case Summary and Outcome

Rashod Kamalov, an imam of As-Sarakhsi mosque in the Kara-Suu district, Osh Region, Kyrgyzstan, gave a sermon during a Friday prayer on the meaning of the term caliphate to clarify queries about ISIS and developments in Syria. For this sermon, Kamalov was charged and found guilty of inciting religious hatred and disseminating extremist materials. He was given a five-year term in a penal colony, which the prosecutor subsequently appealed to request a harsher punishment and the higher court increased to a 10-year term.

Global FoE could not identify official legal and government records on the case and information on the case was derived from secondary sources. Global FoE notes that media outlets may not provide complete information about this case. Additional information regarding legal matters will be updated as an official source becomes available.


Facts

Rashod Kamalov became the imam of As-Sarakhsi mosque in Kara-Suu, Osh Region, Kyrgyzstan, in 2006. The presiding imam was previously Kamalov’s father, Muhammadrafik Kamalov, who was killed by the Kyrgyz Special Forces in 2006. Rashod Kamalov never received official authorization to act as the mosque’s imam from the Kyrgyz Mufti, as per the usual procedure. In 2011, Imam Rashod Kamalov was arrested for fraud and spent a month in prison. The court acquitted him on all charges. In an interview with Radio Freedom, Imam Kamalov alleged that his arrest was an attempt by the Kyrgyz security forces to discredit him in the eyes of his community.

On February 9, 2015, Imam Rashod Kamalov was arrested and charged with incitement of religious hatred, as well as storage and dissemination of extremist materials under the following laws:

  • Kyrg., Crim. Code, art. 299, Incitement of National, Racial, Religious, or Interregional Hatred;
  • Kyrg., Crim. Code, art. 299(2)2, Incitement of National, Racial, Religious, or Interregional Hatred Using an Official Position (an aggravated charge);
  • Kyrg., Crim. Code, art., 299-1, Organized Activities Aimed at Incitement of National, Racial, Religious, or Interregional Hatred; and
  • Kyrg., Crim. Code, art., 299-2, Storage and Dissemination of Extremist Material Using a Position of Power During Public Events.

The charges were based on three pieces of evidence: a CD from a concerned citizen, and a CD and DVD found during the search of the Kamalov’s residence at the time of his arrest. The two CDs and the DVD were recordings of Imam Rashod Kamalov’s sermon on the meaning of “caliphate.” According to Kamalov, he gave the sermon in July 2014 during a Friday prayer in which almost 5000 persons participated. The sermon was a response to questions about the meaning of the term caliphate, ISIS, and participation in the war in Syria.

Lines from the sermon cited by the prosecution’s experts as extremist and unlawful included:

  • “The caliphate will be reborn and Muslims must live hoping for it and pray to Allah for it.”
  • “If someone says that there will be no caliphate, he is outside of religion; we need to follow a man who will create the caliphate — it is a requirement for us.”

Imam Rashod Kamalov blamed his arrest and eventual conviction on his open criticism of the Kyrgyz government. For example, in 2014, he participated in a regional security meeting and stated that law enforcement should take some blame for Kyrgyz citizens joining ISIS in Syria. He stated that religious persons are actively prosecuted by the police for their beliefs, and are forced to pay bribes, which causes some of them to flee Kyrgyzstan, sometimes to Syria.

Kamalov’s lawyers argued that his sermon was based on the Quran and Hadiths, and that it did not include speech that incited violence or extremism. The lawyers attempted to explain that the sermon about the caliphate was given in response to questions about ISIS. His lawyers also argued that Kamalov was not officially an imam since the Kyrgyz Mufti never appointed him to lead As-Sarakhsi mosque, per the usual procedure, and thus the aggravated charge of incitement using a position of power could not be applied.

Rashold Kamalov was arrested in February 2015, but the trial did not begin until August. There were 17 separate hearings that lasted over four months, during which seven witnesses and 10 experts testified.

On October 7, 2015, Imam Rashod Kamalov was sentenced to five years in a penal colony. On October 15, 2015, the prosecutor of the Osh Region appealed the verdict and asked the court to consider a stricter punishment by applying the charges brought under Kyrg., Crim. Code, arts. 299(2)2 (Incitement Using a Position of Power) and 299-2 (Storage and Dissemination of Extremist Materials Using a Position of Power). The appeal was satisfied and Kamalov’s punishment was increased to 10 years in a penal colony.


Decision Overview

The issue of the presence of extremism and incitement to hatred or violence in Kamalov’s sermon, and Kamalov’s criminal guilt, was judged through a review of the prosecution’s and defense’s experts.

The prosecution relied on nine experts to show that Kamalov’s sermon contained extremist statements. The expert conclusions and the bases for them were as follows:

  • The expert assessment of the Government Commission on Religious Affairs was the most important testimony against Kamalov. The assessment concluded that Kamalov’s statements incited religious hatred and hatred towards the government’s authority, and that propagating a caliphate opposed the Kyrgyz Constitution and laws.
  • Specifically, government expert Abdaraimov stated: “We are a secular government, and Kamalov’s statements contradict the constitution of our country. He spoke about the caliphate while on the territory of Kyrgyzstan. Thus, he spoke about Kyrgyzstan. He spoke as the imam of a mosque in Kara-Suu. In my report, I specified the laws and articles that Kamalov contradicted. Freedom of speech should not cause harm. The Imam’s sermon was widely disseminated. People, who do not fully understand religious issues, might interpret the Imam’s words contrary to his intentions.”
  • Government expert Sultanbekova K. C. cited phrases and sentences from Kamalov’s sermon to show that he aimed to form or strengthen negative ethnic or religious stereotypes, specifically:
  1. A sentence that mentioned a terror act in Central Asia that the expert found to be a biased assessment of historical facts;
  2. The use of the term “qafir,” which the expert found to offend the dignity of believers of other religions; and
  3. A mention on an unnamed ethnic Kyrgyz man who called the Quran a lie and laughed at the prophet, which the expert found to incite hatred of ethnic Kyrgyz persons.
  • Government expert Shkolnyi V.A., without citing specific statements made by or facts about Kamalov, declared that Kamalov’s words about the caliphate could be interpreted by believers as a veiled call for a violent regime change.

The defense was structured around three arguments:

  1. Incitement of religious hatred implies a creation of or an attempt to create tensions between at least two religions. However, Kamalov’s sermon did not mention other religions nor advocated for the superiority of one religious group over the other. Thus, his statements lacked the requisite elements of the crime of incitement of religious hatred.
  2. Caliphate is a Quranic term defined in various Islamic religious texts. Kamalov’s sermon differentiated between the canonic caliphate and the pseudo-caliphate of ISIS. To do that, he described the three roads to creating the caliphate, per the Islamic scripture. He also explained the six pillars of Islam, one of which is a belief in the existence of caliphate. Thus, his statements did not stray from the accepted Islamic dogma and could not be considered extremist.
  3. The government used unqualified experts. For example, the prosecution’s strongest argument was based on testimony of Abdarayimov, an employee of the Government Commission on Religious Affairs. However, Abdarayimov did not speak Uzbek, while Kamalov’s sermon was completely in Uzbek. Abdarayimov relied on a partial translation to make his assessment. He was also an anthropologist of Eastern cultures and not a learned theologist.

The Court ignored the defense’s argument that the requisite elements of the crime of incitement of religious hatred were lacking. The Court, as the prosecution, focused solely on the existing or potential extremist nature of Kamalov’s statements in convicting him of inciting hatred and disseminating extremist materials.


Decision Direction

Quick Info

Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.

Contracts Expression

The case exemplifies the faults of content-based speech analysis. Here, the prosecution and the Court focused solely on whether Kamalov’s statements could be interpreted as propagating the superiority of one religious group, and thus (in their view) being extremist. There was no consideration of the likelihood or imminence of harm stemming from his statements, nor a review of the statements against the accepted interpretation of Islam. Such laws or interpretations of the law can suppress religious expression.

Global Perspective

Quick Info

Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.

Table of Authorities

National standards, law or jurisprudence

  • Kyrg., Crim. Code, art. 299, incitement of national racial, religious, or interregional hatred
  • Kyrg., Crim. Code, art., 299-1, Organized Activities Aimed at Incitement of National Racial, Religious, or Interregional Hatred
  • Kyrg., Crim. Code, art., 299-2, Storage and Dissemination of Extremist Material Using a Position of Power During Public Events

Case Significance

Quick Info

Case significance refers to how influential the case is and how its significance changes over time.

This case did not set a binding or persuasive precedent either within or outside its jurisdiction. The significance of this case is undetermined at this point in time.

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