Content Regulation / Censorship, Hate Speech, Political Expression
Gündüz v. Turkey
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Court No. 2 of the Pavlodar Region of Kazakhstan sentenced Ruslan Gansanovich Ginatullin to 6 years’ imprisonment for inciting hatred against ethnic Russians and being a member of a criminal organization. The case was instituted after Mr. Ginatullin posted two videos on his social media accounts that portrayed Russians as racists and called on viewers to reject Kremlin’s “propaganda”. In reaching its decision, the court found that Mr. Ginatullin had disseminated the videos by posting them on the “wall” of his social media accounts and the court also relied heavily on expert testimony to conclude that the videos incited hatred towards ethnic Russians.
Ruslan Ginatullin Gansanovich, the accused, had previous convictions for belonging to Hizb ut-Tahrir, an international Islamic political party. On March 28, 2005, the Astana City Court ruled that Hizb ut-Tahrir was extremist and banned it in Kazakhstan. The ban was justified on the grounds that the organization aimed to establish an Islamic caliphate, led by a caliph. Hizb ut-Tahrir began operating in Kazakhstan in 2002 and Mr. Ginatullin allegedly became involved with it in 2003. It was claimed that he acted in various capacities within the organization, including involvement in the recruitment of new followers and public dissemination of its ideology. In 2004, he was convicted of incitement to racial and religious hatred and sentenced to two years in prison. In 2010, he was once again imprisoned for two years for being a member of Hizb ut-Tahrir, under charges of participating in an organization that was declared extremist.
In 2015, Mr. Ginatullin posted two videos on the social media sites Facebook and VKontakte. The videos were not produced by him.
The first video (hereinafter Video 1), titled “Russia. Those who don’t download are CHURKA!” contained the following allegedly inciting statement: “Those who don’t download are CHURKA: ‘Come on, let’s do it, get them (expletive) out of here. Russia is for Russians! Moscow is for Muscovites! Those who do not jump-up are CHURKAs.’” Churka is a derogatory term in Russian used against non-Europeans or persons with dark complexion, often used to refer to persons from the Caucasuses or Central Asia.
The second video (hereinafter Video 2) was titled “Ukraine. War. Ramil – weight 200” and included the following allegedly inciting statement “Tatars and Bashkirs, have you forgotten your history? How Russian occupiers insolently conquered our lands in the 16th and 17th centuries? How they conquered the Kazan Khanate, how they took Orenburg and killed tens of thousands of Bashkirs by burning their villages. Have you lost your mind and are now helping the occupiers? Wake-up! Do not listen to Kremlin’s lies and propaganda! Do not turn into zombies. Those who have forgotten their past do not have a future!” Tatars and Bashkirs are Turkic people who live in Russia and regions that were historically under Russian influence.
In June 2016, the Pavlodar Ministry of Interior conducted an expert psycho-philological review of the videos, which determined that Video 1 contained elements of incitement to national hatred. The expert conclusion was that both videos aimed to form and strengthen negative stereotypes of ethnic Russians as well as to juxtapose people on the basis of nationality. Following the expert review, the Pavlodar Ministry of Interior requested KazakhTelecom, a Kazakh telecommunications company, to pinpoint the location from where the two videos were uploaded. The location was Mr. Ginatullin’s place of residence.
Following the expert review, in July 2016, the Ministry of Interior searched Mr. Ginatullin’s residence and discovered books entitled “Mohammed”, “The General Idea of Islam”, “Religious and Social Issues”, “The Way Marked”, “Mohammed’s Hadiths”, “The Theory and Practice of Islam”. The law enforcement authorities also confiscated 13 CDs, Mr. Ginatullin’s smartphone, and two laptops. The Ministry of Interior’s technical experts reviewed the confiscated materials and determined that the videos in question were uploaded from Mr. Ginatullin’s smartphone.
Mr. Ginatullin denied the charges. He also alleged that while in custody he was physically and psychologically threatened and abused. For example, the prosecutor allegedly told Mr. Ginatullin that if he did not plead guilty his detention would be difficult. Also, Mr. Ginatullin recounted that one of the inmates in his cell ordered him to plead guilty, called him an extremist, and on several occasions beat him.
Additionally, Mr. Ginatullin claimed that during one particular interrogation, the investigator simply wrote down questions and answered them himself. The deposition sheet was signed by Mr. Ginatullin in the presence of his lawyer and his mother. However, he subsequently recanted these statements.
Mr. Ginatullin argued that he did not incite national hatred, but simply practiced his freedom of expression by uploading two videos online. He also denied claims that he was a nationalist.
Court No. 2 of the Pavlodar Region of Kazakhstan (Court) found Mr. Ginatullin guilty of violating Criminal Code Article 235.3, which prohibits involvement with a criminal group. The Court reached this conclusion on the basis of Mr. Ginatullin’s prior convictions for involvement with Hizb ut-Tahrir, as well as his admittance to investigators that he was a member of the organization. The Court rejected the claim that his testimony was forced, since his lawyer and mother did not corroborate this testimony. Furthermore, he was examined by a court psychologist who said that the issue of mistreatment was never raised.
In regard to the charges brought pursuant to Criminal Code Article 174.1, the Court began by listing the findings of a psycho-philological expert who determined that Video 1 formed and strengthened a negative stereotype of ethnic Russians, which was that they discriminated against non-ethnic Russians. In relation to Video 2, the expert concluded that it called on the viewers to discriminate on the basis of ethnicity, and portrayed Russians and Bashkirs/Tatars as ethnic groups opposing each other.
The defence argued that the court should not accept the expert findings because Rabilov D.T., who reviewed the videos, was not qualified to do so. The court dismissed this argument, explaining that according to a June 2016 order by an unspecified investigator, psycho-philological reviews were to be conducted by experts of the Central Institute of Judicial Expertise of Astana City, and Mr. Rabilov was its lead expert. Thus, the Court had no reason to question the expert findings.
The court then reviewed testimonies of technical experts. Particularly, the court highlighted that the experts determined that the Facebook and VKontakte newsfeeds were open to the public and automatically disseminated information to “friends”, making them a means of disseminating information under the law. Another technical expert testified that only Mr. Ginatullin could upload the videos in question. The expert also reported that Video 1 was viewed 42 times, while Video 2 had 790 views.
Mr. Ginatullin argued that the social networks carried the responsibility for the videos under Article 25 of the “Law on the means of mass information”. However, the Court specified that this provision was not applicable to convictions under Article 174.1 of the Criminal Code. Thus, Facebook and VKontakte were not liable.
The Court then highlighted conclusions of expert reviews of books and electronic devices found at Mr. Ginatullin’s place of residence. A psycho-philological expert review determined that the items found at Mr. Ginatullin’s residence did not contain elements of incitement to hatred or advocacy for the superiority of one group over another on the basis of religion, ethnicity or language.
Lastly, the Court highlighted that Article 14 of the International Covenant on Civil and Political Rights declared that all persons were equal before the court, and that they must be afforded the opportunity to defend themselves before an objective tribunal. The Court then declared that it had acted in accordance with this provision.
The Court concluded that, upon the review of all evidence, there remained no doubt that Mr. Ginatullin was guilty and sentenced him to six years in prison.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This decision contracts expression because it penalizes the publication of videos on the basis that they incite hatred, without establishing a direct and immediate connection between the expression and the threat of incitement to hatred or violence. Furthermore, the Court penalized an individual for merely disseminating the offensive and racist views of others. The Court assumed that by posting videos containing such views the accused had intended to incite hatred, and in doing so failed to consider the possibility that the accused might have posted the videos in order to counter such views through exposure.
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