Content Regulation / Censorship, National Security
The Sunday Times v. United Kingdom (No. 2)
Closed Contracts Expression
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The Supreme Court of Kyrgyzstan upheld a lower instance court order to block the broadcasting and access to the website of a TV station in the country. On September 29, 2016, the TV channel aired an interview with the former Head of the Regional Ministry of Interior of Osh City in Southern Kyrgyzstan. In May 2017, the former Head of the Regional Ministry of Interior had been found guilty of incitement to ethnic hatred over the interview. On August 22, 2017, the TV channel learned that the Prosecutor General had requested the channel to be blocked in Kyrgyzstan for airing the interview and the trial was to take place that day. The first instance court did not view the interview in question or the expert analysis of the said interview. Nevertheless, on the basis of the arguments invoked by the Prosecutor General, it found that the TV channel had violated the prohibition on disseminating “extremist materials” and ordered for the TV channel to be blocked both online and through broadcast medium in Kyrgyzstan. On December 27, 2017, the Supreme Court of Kyrgyzstan rejected the TV channel’s appeal on the basis that it was filed by an unauthorized person.
A privately-owned TV-channel in Kyrgyzstan, the “September” Channel (Канал «Сентябрь»), was owned by the TV-Radio Company S-2. The TV channel had been linked with the opposition politician Mr. Omurbek Tekebaev. In February 2017, Kyrgyz law enforcement authorities arrested Mr. Tekebaev on charges of having accepted a $1million bribe from a Russian investor. In August 2017, he was sentenced to eight years in prison for corruption and fraud. This was later reduced to four and a half years in honor of the 65th anniversary of the Universal Declaration of Human Rights.
On August 22, 2017, an unidentified individual called the TV channel and asked for its representative to be at the Pervomaysk District Court of Bishkek at 2 P.M. The individual did not explain for what purpose their legal representative was to attend the court. Once in the courtroom, the TV channel’s representative (Ms. Kanyshay Mamyrkulova) learned that the Prosecutor General of Kyrgyzstan had petitioned the court for an order to ban the TV channel’s broadcasting and online presence in Kyrgyzstan on the ground that it disseminated “extremist material”. Ms. Mamyrkulova asked to postpone the trial since the TV channel had not received adequate notice and thus could not familiarize itself with charges levied against it. The Pervomaysk District Court of Bishkek refused to postpone the trial and, within hours, issued an order to shut down the channel.
According to the court documents, the request for the ban followed from an interview with the former Head of the Regional Ministry of Interior of Osh City, Mr. Kaparov, which had aired on September 29, 2016. The Prosecution argued that, during his interview, Mr. Kaparov wanted to incite ethnic hatred between Kyrgyz and Uzbek ethnic groups. Particularly, it was alleged that Mr. Kaparov accused a school administration of playing the Uzbek national anthem and lifting the Uzbek national flag during a school celebration. Mr. Kaparov argued that such behavior was not acceptable and recalled ethnic clashes between Uzbeks and Kyrgyzs.
The Prosecution submitted a recording of the interview for an expert review by the Philosophy and Law Faculty of the Kyrgyz Academy of Sciences. The expert report concluded that:
The experts came to this conclusion by first defining incitement to ethnic hatred as making statements or committing acts that defame or insult with the aim of undermining trust and respect towards a certain ethnic group. They put Mr. Kaparov’s interview into context, highlighting that in 2013 he made statements about incidents that had occurred during the 2010 ethnic clashes (the experts did not specify what Mr. Kaparov said). The experts alleged that Mr. Kaparov had had the interview with the TV channel for the purpose of continuing to disseminate his radical views in full knowledge of the laws of Kyrgyzstan. They alleged that he used the TV channel as a platform to repeat statements made by Kadyrzhan Batyrov, an individual who had been sentenced to life imprisonment in 2014 for organizing the 2010 clashes. They concluded that, by taking part in the interview, Mr. Kaparov attempted to destabilize the socio-political situation in Kyrgyzstan using ethnic problems. On May 5, 2017, the Osh City Court found Mr. Kaparov guilty of violating Article 299(1) of the Kyrgyz Criminal Code, which prohibited incitement to ethnic hatred, and sentenced him to three years in prison because of the interview.
The experts also concluded that the TV channel had knowledge of Mr. Kaparov’s radical and extremist views, and his attempts to use ethnic hatred to destabilize the country. They noted that, in 2015, at least two newspapers analyzed and criticized Mr. Kaparov’s 2013 and 2015 speeches about the events in June 2010. Nevertheless, the TV channel still decided to interview Mr. Kaparov in 2016.
According to Article 23 of the Law on Mass Media in Kyrgyzstan, TV stations are prohibited from broadcasting (i) calls to violate the sovereignty and territorial integrity of Kyrgyzstan, (ii) advocacy of violence or intolerance of persons or groups on ethnic, religious, or national grounds. According to expert conclusions, the TV channel publicly broadcasted statements prohibited by the above-mentioned article. Additionally, they argued that the TV channel’s decision to broadcast Mr. Kaparov’s interview violated Article 1 of the Law on Preventing Extremist Activities, which prohibited actions by media companies intended to incite racial, ethnic, religious, or social hatred (i.e. “extremist activities”).
Relying on this expert report, the Prosecutor requested the Pervomaysk District Court of Bishkek to:
The request was supported by the Committee on National Security and the Government Committee on Information Technology in Kyrgyzstan. The representatives of the TV channel did not offer any defense and left soon after the trial began. Nonetheless, the Pervomaysk District Court of Bishkek found the respondents were properly notified, and their non-participation at the trial did not prohibit the court from ruling on the merits.
The Pervomaysk District Court of Bishkek (Court) began by recounting the facts of the case. It also held that the expert findings had not been questioned by the TV channel and, therefore, there was no reason for the Court to reject them. Thus, the Court held that Mr. Kaparov’s interview, as conducted and broadcast by the “September” TV channel, amounted to “extremist material”. In support of this, the Court referred to Mr. Kaparov’s conviction for inciting ethnic hatred through a public medium.
The Court also held that the TV channel had knowledge of Mr. Kaparov’s intentions and the harm that would be caused by broadcasting his interview. In support of this conclusion, the Court highlighted that the newspaper “Maydan” («Майдан») published an article in April 2015 criticizing Mr. Kaparov’s statements about inter-ethnic conflict.
The Court noted that Article 4 of the Constitution of Kyrgyzstan (Constitution) prohibited activities of political, public and religious organizations that aim to violently overthrow the constitutional regime, undermine national security, or incite ethnic hatred. Additionally, Article 31 of the Constitution prohibited advocacy of national, ethnic, or religious hatred, gender or other social supremacy which calls for discrimination, hostility, and violence. The Court recalled that the experts from the National Academy of Science defined incitement to ethnic hatred as making statements or committing acts that defame or insult with the aim of undermining trust and respect towards a certain ethnic group. Incitement to a violent overthrow of the government was defined as a type of influence on the mind, will and actions of persons, using targeted messages that incite people to act in a certain manner. In this case, the Court determined that the aim was to unite individuals and direct them to violently overthrow the constitutional regime of Kyrgyzstan. Such statements were public when they were open, accessible and apprehensible, and were targeted a large number of persons. The Court also reasoned that crimes of incitement were considered complete once such a statement was made, and whether the statement achieved the intended result or influenced anyone was irrelevant.
According to Article 13 of the Law on Mass Media, a court had the sole authority to stop or ban dissemination of information produced by a media organization. Thus, the Court ordered for the blocking of the digital and analog broadcast of the “September” TV channel, as well as the blocking of access to its website in the territory of Kyrgyzstan.
The TV channel appealed the decision on a number of procedural and substantive grounds:
The Supreme Court of Kyrgyzstan rejected the appeal on procedural grounds. Following a forty-minute hearing, the Supreme Court held that the TV channel’s appeal had been signed by an unauthorized person and left the lower instance ruling in force.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This decision violates a range of international standards on the rights to freedom of expression and to a fair trial. Although, under international law, the right to freedom of expression can be limited for the purpose of protecting national security and/or to prevent incitement to ethnic hatred, such limitations must still meet the tests of necessity and proportionality under Article 19 of the International Covenant on Civil and Political Rights (ICCPR). In relation to such limitations, the Human Rights Committee has stated that States must demonstrate in specific and individualized fashion the precise nature of the threat, and the necessity and proportionality of the specific action taken, in particular by establishing a direct and immediate connection between the expression and the threat. In this case, the authorities and courts in Kyrgyzstan have failed to demonstrate a direct and immediate connection between the broadcasting of the TV channel and a threat to national security or the rights of others. Furthermore, the courts imposed a complete ban on the TV channel, which is excessive, disproportionate and amounts to prior censorship. The measure is a clear violation of the right to freedom of expression under international law.
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.
Although the decision has no legal precedential value, due to Kyrgyzstan being a civil law system, the decision has significant symbolic precedent.
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