The presented draft Law of the Kyrgyz Republic on Countering Extremist Activities aims to update and streamline the legislation of the KR in the field of countering extremist activity and, in particular, bring it into line with the Convention of the Shanghai Cooperation Organization on Countering Extremism (hereinafter – the SCO Convention).

We understand the importance of these tasks, but we would like to point out a number of provisions in the draft law that require more or less significant clarification or even changes in wording in order to avoid ambiguity of interpretation and internal contradictions in the legislation of the KR. We will also propose the minimum necessary changes that, in our opinion, should be made to other legal regulations.

Key comments

Let's start with the most significant comments that are relevant to the entire draft law.

1. The definition of extremism in Part 1 of Article 4 is brought in line with the SCO Convention, but requires clarification.

Not all the unconstitutional actions, i.e. actions that contravene the Constitution, are a sign of extremism, even if these actions have political, etc. goals (there are many examples).

Therefore, at the end of paragraph 1 after the word "actions" it is proposed to add: "leading to violence", thereby preserving the integrity of the definition in paragraph 1.

This definition is very important, since many other articles of the draft law that mention the concept of "ideology of extremism" actually appeal to it. It is possible to stipulate directly in Part 1 of Article 4 or at the first mention of the "ideology of extremism" that it means "ideology aimed at achieving political, social, racial, national and religious goals through violent and other unconstitutional actions leading to violence."

The same applies to the concept of "extremist goals", which is used in paragraph "b" of Part 2, Article 4 of the draft law: they should be directly linked to part 1 of the same article - as "achieving any political, social, racial, national and religious goals through violent and other unconstitutional actions leading to violence."

The concept of "extremist crimes", which is used in paragraph "a" of Part 2, Article 4 of the draft law does not have a general definition in the draft law now, whereas the paragraph "a" itself clearly lists only a part of such crimes. In order to avoid misunderstandings in the further use of this term in legislation, it makes sense to add the following right after these words: "i.e. committed to achieve any political, social, racial, national and religious goals through violent or other unconstitutional actions leading to violence." It should be assumed that such a wording includes any crimes committed on the basis of different types of enmity (discord), which is a general aggravating circumstance according to paragraph 2 of Part 1, Article 74 of the Criminal Code.

Apparently, due to the introduction of the concept of "extremist crimes", the composition of Part 1 of Article 331 of the Criminal Code should also be changed so that this part refers to organizations that commit any such crimes, and not only inciting hostility, which unreasonably narrows the composition of Part 1 of Article 331.

2. To date, all the extremist actions explicitly mentioned in Article 4 are crimes provided for by the Criminal Code. But some of these actions do not in themselves pose such a significant public danger to be considered as criminal offenses.

First of all, this applies to the dissemination of extremist materials. Such an action, if it does not include the elements of another crime (for example, calls to terrorism or incitement of religious hatred), may well be prosecuted under the Code of the Kyrgyz Republic on Offenses (hereinafter referred to as the CoO), in the same way as it is done in the legislation of the Russian Federation, for example.

The same applies to the dissemination and display of attributes and symbols of prohibited organizations.

The issue of partial decriminalization of some other punishable acts should also be considered. For example, incitement of hostility (Article 330 of the Criminal Code) can be considered an offense, not a crime, if it does not have the qualifying features (i.e. it corresponds to P. 1 of the Article) and is not committed repeatedly within a year – such a system has been in effect in Russia since the beginning of 2019.

If you agree with at least part of these proposals, you should slightly change the wording of the first sub-paragraph of paragraph "a" of Part 2, Article 4 of the draft law: instead of "extremist crimes", it should state "extremist crimes or offenses".

3. Both the dissemination of extremist materials and the dissemination and display of attributes and symbols of banned organizations do not always have unconstitutional goals. The draft law makes an exception for scientific purposes, but this is not enough. It is easy to give examples when such materials or symbols are used for artistic and educational purposes, for information purposes or for the purposes of polemics with the corresponding extremist ideology. They can also be used accidentally outside the context of such an ideology.

Therefore, in Part 5 of Article 4 of the draft law, it is necessary to delete the second sentence (on scientific activity), and continue the first sentence with the words ", in order to spread the ideology of extremism". Thus, this provision will prohibit specifically forms of dissemination of such ideology.

The corresponding amendment should also be made to Articles 11 and 20 of the draft law and Article 332 of the Criminal Code (and if it is fully or partially transferred to the CoO, then to CoO as well).

5. Articles 14-15 on the responsibility of the mass media and articles 17 and 19 on the responsibility of organizations now offer an insufficiently explicit and unjustifiably rigid mechanism for the implementation of this responsibility.

For example, Part 1 of Article 14 begins with the assumption that the media can distribute extremist materials, but there will be no signs of a crime in this, although such an action is now considered as a crime under Article 4 and according to the Criminal Code. Apparently, it is still assumed that in some cases the dissemination of extremist materials is not a crime. This is consistent with our proposal to consider such actions not a crime, but an offense. But in its current form, the beginning of article 14 remains unclear.

On the other hand, even the commission of an extremist crime by one media employee or one member of an organization should not be a sufficient reason for the liquidation of the entire media/organization. Of course, such an event says a lot about this media/this organization and attracts the legitimate attention of law enforcement agencies to it, however, liquidation for one such episode is a disproportionate measure.

We propose to rewrite the listed four articles in such a way as to introduce a single and transparent mechanism of responsibility:

- in case of detection of the fact of distribution of extremist materials, symbols or attributes of extremist organizations, propaganda of the ideology of extremism, or (for the organization) commission of another crime or offence of an extremist nature, the media/organization receives a warning, which includes a list of measures to correct violations (if such measures can be taken in principle);

- the validity of such a warning can be appealed by the media/organization through the court;

- the media/organization should take measures to correct violations within 30 days if the warning is not recognized by the court as illegal;

- if the measures are not taken on time or if such a fact is revealed again within a year after the warning is issued, this may become the basis for the closure of the media/liquidation of the organization on the basis of a court decision on the claim of the Prosecutor General's Office;

- the fact that the Prosecutor General's Office has formal grounds for filing such a claim should not be a legally binding circumstance for the court to make a decision on the liquidation of the media/organization. When considering a claim, the court should take into account all the circumstances of the case, including the general nature of activity, the public importance and reputation of the media/organization, etc. As a result, the court should be able to make another decision, for example, giving the media/organization another chance to fix their shortcomings.

Specific comments

In this section we provide specific comments on the wording, – in the order in which the articles are presented in the draft law.

1. In Article 3, in the paragraph beginning with the word "non-discrimination...", it makes sense to replace or supplement the term "disability" with the term "state of health". Disability is rather a technical term meaning the existence of a corresponding status assigned by the health system, however, discrimination can also occur on the basis of a real state of health, regardless of the presence or absence of this status.

The Law of the Kyrgyz Republic No. 63 dated 27 April 2017 on Defence and Protection Against Family Violence uses the concepts of "gender equality" and "gender discrimination and violence".

Therefore, in order to form a uniform approach to combating discrimination, in the same paragraph of Article 3 of the draft law, the word "gender" should be added after the word "ethnic".

2. In paragraph "a" of Part 2 of Article 4, after the words "separatist activity", the phrase "committed by force" should be added in order not to create a contradiction with the Criminal Code of the KR.

3. Further, in the same list of kinds of inciting discord, there are "ethnic" and "national" discord mentioned in a row (probably one term goes back to the Constitution, and the other to the SCO Convention). In the modern language, the words "ethnicity" and "nationality" can mean both the same thing, namely ethnicity, and different things when nationality is understood as citizenship. This creates an ambiguity in the law, which should be clarified immediately.

4. Further, ibid., "distribution of extremist materials" can be considered as extremist activity only in case if we are talking about mass distribution (by publication, distribution, dispensing, etc.), since handing out a material in a single copy either does not represent a significant public danger, or is not performed for extremist purposes.

Therefore, these words should be replaced with "mass distribution of extremist materials."

A similar amendment should be introduced in Article 11, Part 4 of Article 16 and Article 20 of the draft law, as well as in Article 332 of the Criminal Code of the KR

5. Further in paragraph "b" the words "other acts" should be replaced by "other illegal acts".

6. The second part of the same sentence, about international treaties, is proposed to be deleted. In case of signing an international treaty, the relevant amendments are usually introduced into national legislation and law enforcement is already carried out on the basis of the provisions of national legislation.

7. With regard to Part 5 of Article 4, an addition should be made to Article 17 stating that if an organization is recognized as extremist, the court should list and describe its symbols and attributes in the text of the decision, the public use of which will be prohibited in the future.

8. In Article 11, the "storage" of extremist materials should be replaced by "storage for the purpose of mass distribution" in order not to create a contradiction with the Criminal Code of the Kyrgyz Republic.

9. The same article contains the idea of prohibiting the distribution of materials "the authors of which are persons convicted in accordance with international legal acts for crimes against the peace and security of mankind". Although the intentions of the authors of the draft law are clear, the prohibition is set forth poorly. Firstly, there are a lot of such convicts, and, thus, neither their list, nor the list of their possible works are known to either the law enforcement agencies of the KR or the citizens of the KR. Secondly, many of them may have had works that have nothing to do with their crimes and related ideas, for example, lyric poetry. Thirdly, many leaders of Nazi Germany, including Hitler, were not convicted by the Nuremberg or other tribunals.

In essence, materials of such authors, which have a real chance of distribution and really deserve a ban, can be prohibited in the usual manner based on their content. Thus, the wording beginning with the words "the authors of which are persons..." is redundant and only creates additional legal uncertainty.

10. Part 5 of Article 16 contains insufficiently clear wording about the "periodic" updating of the list. Instead, you should indicate a specific deadline for updating this list – for example, stipulate that the Prosecutor General's Office updates the list within 7 working days from the date of entry into force of the relevant court decision.

The same applies to Part 8 of Article 19 on organizations.

11. In Articles 17, 18, both the term "warning" and the term "admonition" are used. To eliminate confusion, it is necessary to focus on one of these terms.

In general, please, note that the draft law needs additional editing and proofreading at the final stage. For example, the word "extremist" and its derivatives in the text are often written without the last letter "s".

12. In part 1 of Article 18, the word "radicalization" should be removed: in a political or sociological context, it is clear what is being discussed, however, the legislation does not define this term and in general it is superfluous here.

13. In part 2 of the same article, it is necessary to replace the phrase "in the absence of signs of extremist crimes" with "in the absence of a crime or an offense that is extremist activity" for greater distinctness.