Content Regulation / Censorship, National Security
The Sunday Times v. United Kingdom (No. 2)
On Appeal Contracts Expression
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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.
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:
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:
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.
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 defense was structured around three arguments:
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 indicates whether the decision expands or contracts expression based on an analysis of the case.
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 demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
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