Since the adoption of the UN Plan of Action, impunity rates in journalists’ killings across the world have hovered around 90%,^[1] the same rate applies to OSCE countries.^[2] In Council of Europe member States, impunity also remains extremely preoccupying. The recent annual report of the partners to the Platform^[3] has highlighted that in 2018 26 impunity alerts were published on the Platform, including 17 individual cases of impunity for murders of journalists. In addition, a separate impunity alert on Serbia, published in August 2018, identified 14 more cases of killings, kidnappings and disappearances of Serbian and Albanian journalists between 1988 and 2005 that remain unresolved. The report also highlights the alarming lack of substantial progress in identifying and bringing to justice the instigators or masterminds of recent murders and suspected murders of journalists in the Council of Europe area.^[4]

The persistence of intimidation, threats and violence against journalists and other media actors, coupled with the failure to bring to justice the perpetrators of such offences have a chilling effect on freedom of expression and on public debate. States must combat impunity to ensure justice for the victims, deter the commission of future human rights violations and, more generally, in order to uphold public trust in the justice system.

Council of Europe member States have a procedural obligation to carry out an effective investigation where there are allegations of breach of the Convention rights. Such obligation exists, in particular, under Article 2 (right to life), Article 3 (prohibition of torture and inhuman or degrading treatment or punishment) and Article 10 (right to freedom of expression) of the Convention.

Under Article 2, the state must guarantee the safety and physical integrity of everyone within its jurisdiction. This entails not only the negative obligation to refrain from the intentional and unlawful taking of life, but also the positive obligation to take appropriate steps to protect the lives of those within its jurisdiction. Under the procedural limb of this positive obligation, state must carry out effective, independent and prompt investigations into alleged unlawful killings, either by state or non-state actors, with a view to prosecuting the perpetrators of such crimes and bringing them to justice. The purpose of such investigation is to secure effective implementation of the domestic laws which protect the right to life and, in the cases involving state agents or bodies, to ensure their accountability for deaths occurring under their responsibility.

It is a well-established position of the European Court of Human Rights that failure by the State to ensure an effective investigation into the murder/attack on the physical integrity of a person constitutes in itself a violation of the right to life.^[1] The Inter-American Court of Human Rights (IACHR) follows the same approach.^[2]

The procedural obligation to carry out an effective investigation may arise even where the victim has not died of the attack on his/her life and disappearance cases.^[3] Where investigation has led to the institution of proceedings in the national courts, this obligation will also extend to the trial stage. In Oneryildiz v. Turkey^[4], the Court stated that the proceedings as a whole, including the trial stage, must satisfy the requirements of the positive obligation to protect lives through the law. Hence, national courts must treat the case with appropriate seriousness, giving it careful scrutiny and imposing a deterrent sentence where appropriate.^[5]

Under Article 3, states have a procedural obligation to carry out an effective investigation into credible claims of ill-treatment and into cases where the authorities have reasonable grounds to suspect that such ill-treatment has occurred. The Court has held that in case of intimidation and violence against the media and its representatives, the state is under a positive obligation to undertake effective investigations and take protective measures also under Article 10.^[6]

The Guidelines on eradicating impunity for serious human rights violations issued by the Council of Europe Committee of Ministers set out norms and standards for, among others, effective, timely and independent investigations.^[7]

Independence of the investigation

As specified by the Court in Najafli v Azerbaijan,^[8] the investigation must be independent from those implicated in the events. If there are allegations against the police, there should not be institutional or hierarchical connections between the investigators and the officer against whom a complaint has been filed and there should be practical independence.^[9] This also means that the investigation should not rely entirely on the evidence produced by police officers allegedly implicated in the death,^[10] nor should the investigation be led by their colleagues and those employed by the same authority.^[11] In furtherance of this aim European Committee for the Prevention of torture and inhuman or degrading treatment or punishment (CPT) has strongly encouraged the creation of an independent investigative body, separate from the police, for complaints suggesting criminal or disciplinary culpability of police agents where Articles 2 or 3 of the Convention are engaged .^[12]

Adequacy of the investigation

The investigation must be adequate in the sense that it must be capable of leading to the identification and punishment of those responsible. In addition, as concerns in particular cases involving the police, the military or other public bodies, the investigation must shed light on the cause and circumstances of the death, as to whether any use of force was justified under Article 2.^[13] This is an obligation of means: authorities must take reasonable steps to secure all the relevant evidence concerning the incident including, among others, eyewitness testimony, forensic evidence and, where appropriate, an autopsy providing a complete and accurate record of injury and an objective analysis of clinical findings, including the cause of death. Any deficiency in the investigation which undermines its ability to establish the cause of death or the person(s) responsible will risk falling short of this standard.^[14] The investigation may be considered as inadequate where investigators fail to consider the possibility of state officials’ (such as members of the security forces) implication in attacks.^[15] Furthermore, as specified in Mazepa and others v. Russia,^[16] in the context of contract killings, an investigation cannot be considered adequate if genuine efforts have not been made to identify the person(s) who had commissioned the killing.

Thoroughness of the investigation

The investigation should be comprehensive in scope and address all of the relevant background circumstances, including any racist, gender-based or other discriminatory motivation, any political motivation and possible link between the violence and the exercise of journalistic activities by the victim.^[17] It should also be capable of identifying any systematic failures that had led to the violation. This requires taking all reasonable steps to secure evidence, such as identifying and interviewing the alleged victims, suspects and eyewitnesses; examination of the scene of the alleged violation for material evidence and the gathering of forensic and medical evidence by competent specialists. The evidence should be assessed in a thorough, consistent and objective manner.^[18] As indicated in the 2012 Joint Declaration on crimes against freedom of expression,^[19] where there is some evidence that the crime at issue may be a crime against freedom of expression, the investigation should be conducted with the presumption that it so, until proven otherwise and relevant lines of inquiry related to the victim’s expressive activities have been exhausted.

Promptness of the investigation

Investigations must be prompt in order to secure quality evidence. Any delay in investigating and in trying threats or violent crimes towards journalists and other media actors gives a sign that such crimes are assigned low priority. This in turn leads to a sense of impunity among perpetrators and helps perpetuate the acceptance of such violence.

The authorities must act of their own motion, once the matter has come to their attention and should not require the initiative of the next of kin to instigate an investigation. The fact that the victim does not wish to lodge an official complaint, later withdraws such complaint or decides to discontinue the proceedings does not absolve the authorities from their obligation to carry out an effective investigation.^[20]

Public scrutiny over the investigation /accessibility to the victims or their families

The Recommendation CM/Rec(2016)4 highlights the importance of involving victims in the investigation process. Article 13 of the Convention imposes, without prejudice to any other remedy available under the domestic system, including the payment of compensation where appropriate, an obligation on states to carry out a thorough and effective investigation in which the complainant has effective access to the investigatory procedure.^[21] The victim or the next of kin should in practice be able to receive information on the investigation, including having access to the case file, and to present evidence.^[22] The next of kin of the victim must be involved in the procedure to the extent necessary to safeguard his/her legitimate interests.^[23]

Public scrutiny is required to ensure accountability and maintain public confidence in the justice system. In this connection, it may be sufficient for the investigation to be carried out in private, provided that the report is made public. In some cases, accountability to the public may require that the investigation be conducted in public.^[24]

Specialised investigation units and other prosecutorial arrangements

The establishment of specific units within the police, as well as in the prosecutor’s office, with specific expertise in human rights and the safety of journalists can improve the effectiveness and impartiality of investigations. Such specialised units should be trained in line with the suggestions made in section II(B)(d) of this Implementation Guide. Conflict of interest rules must nevertheless apply also in relation to these specific units/arrangements. Should a member of that specific unit/police force be implicated in a specific case, it would need to be referred to another police body, including, whether available, an independent investigative body for complaints against the police.

An independent and impartial judiciary

Article 6 § 1 of the Convention requires a tribunal falling within its scope to be “independent” and “impartial”. The principles applicable when determining whether a tribunal can be considered “independent and impartial” apply equally to professional judges, lay judges and jurors.^[1] Compliance with the requirement of independence is assessed, in particular, on the basis of statutory criteria.^[2]

In determining whether a body can be considered to be “independent”, the Court has had regard to the following criteria: (a) the manner of appointment of its members and (b) the duration of their term of office; (c) the existence of guarantees against outside pressures; (d) whether the body presents an appearance of independence.^[3] Impartiality normally denotes the absence of prejudice or bias and its existence or otherwise can be tested in various ways.^[4]

The safety of judges, prosecutors, lawyers and witnesses

In order to eradicate impunity, the judiciary and prosecutors, as well as lawyers and witnesses must be able to conduct/participate in the investigation free from fear and from political or other pressure.

While Article 6 of the Convention does not explicitly require the interests of witnesses to be taken into consideration, their life, liberty or security of person may be at stake, as with interests coming generally within the ambit of Article 8 of the Convention. States should organise their criminal proceedings so that those interests are not unjustifiably impaired. The principles of a fair trial therefore require that in appropriate cases the interests of the defence are balanced against those of witnesses or victims called upon to testify.^[5]

Special provisions for penalties, limitation periods for prosecution and amnesties/pardons

In order to effectively tackle impunity, parallel legal reforms may be needed, including introduction of aggravated penalties, removal of limitation periods for the prosecution of and strictly limiting amnesties and pardons for certain categories of crimes. The Guidelines on eradicating impunity for serious human rights violations ^[1] clarify that states should provide a mechanism involving criminal and disciplinary measures in order to sanction behaviour and practice within state authorities which lead to impunity for serious human rights violations. The Recommendation CM/Rec(2016)4 calls for aggravated penalties in relation to public officials who, by neglect, complicity or design act in a way that prevents or obstructs the investigation, prosecution or punishment of those responsible for these crimes. The Joint Declaration on crimes against freedom of expression, goes beyond this and requires that, taking into account their serious nature, crimes against freedom of expression should be recognised in criminal law, either explicitly as a separate category or as an aggravated circumstance leading to heavier penalties.^[2] The UNESCO Resolution on “Condemnation of Violence Against Journalists”^[3] calls for removal of any statute of limitations for crimes perpetrated to prevent the exercise of freedom of expression or with the purpose of obstruction of justice.

Statistics collection and other measures needed to stem impunity

For documenting and assessing the scale and severity of the impunity problem, as well as for informing any strategies and responses to it, concrete quantitative and qualitative disaggregated data on threats, attacks or violence against journalists is essential.

In this vein, indicator 16.10.1 of the UN Sustainable Development Goal 16.10 encourages member States to collect data on the number of verified cases of killing, kidnapping, enforced disappearance, arbitrary detention and torture of journalists and associated media personnel (and other categories). The UN Human Rights Council has further recommended establishing or enhancing information-gathering and monitoring mechanisms, such as databases, to permit the collecting, analysis and reporting of concrete quantitative and qualitative disaggregated data on threats, attacks or violence against journalists.^[4] This data should be disaggregated also on the basis of gender in order to assess the prevalence of gender-specific threats and attacks and, given the prevalence of gender-based attacks against female journalists online, should encompass online abuse.

• In the Netherlands, in cases involving the lethal use of force by police officers, the independence of the investigation is ensured through the specialised State Criminal Investigation Department, which carries out such investigations instead of local police. The Department must be informed immediately about the use of force and the local public prosecutor has to be informed as soon as possible. At later stages of the investigation and prosecution, if there is a strong connection between the local prosecutor and the police officers under investigation, the Chief public prosecutor may appoint a different public prosecutor. The final decision to prosecute lies with the Chief public prosecutor and not the local public prosecutor.^[1]
• In the Czech Republic, if a claim against a police officer is brought alleging the commission of a crime, a separate entity (General Inspection of Security Forces) is responsible for its investigation.
• As concerns independent bodies responsible for investigating criminal complaints filed against law enforcement agents:
  • In the UK, the Independent Office fr Police Conduct investigates cmplaints against police forces, the National Crime Agency, British Transport Police and Ministry of Defense Police.
  • In Iceland, an independent and impartial executive cmmittee (the Icelandic Police Monitoring Committee) receives complaints on alleged criminal conduct by police officers (as well as complaints to working methods). It investigates, in particular, cases of death or serious bodily harm in relation to police work. If the prosecutor or ther government agencies or institutions receive any such complaints, they must forward them to the committee without delay.
  • In Bulgaria, the Ministry f Interior has an independent body responsible for investigating corruption, abuse of power and other unlawful acts by policemen.

• In Ukraine, a Council on the protection of journalistic activity and freedom of speech has been set up, in order to closely monitor the performance of investigations of offenses committed against journalists. Its composition includes law enforcement personnel and representatives of the media community.^[2]
• The British Crown Prosecution service has issued “Guidelines on prosecuting cases involving communications sent via social media”. These Guidelines pay particular attention to tackling gendered online abuse, including violence against women via social media.

Specialised investigation units and other prosecutorial arrangements 

• In the Netherlands, the Dutch Association of Journalists cooperates with the national Public Prosecution Service (PPS) in connection with journalists’ formal complaints of threats and intimidation. The “Agreement of the Steering Group on aggression and violence against journalists” concluded by the prosecution service, the police and journalist organisations in the Netherlands provides that the public prosecution service and the police will actively develop policies to ensure the prioritisation of the detection of and prosecution for aggression and violence against journalists by the police and the public prosecution service, through issuing guidelines and organising trainings. The agreement also stresses the need to ensure the quality of the investigations and police reports and requires that the public prosecution service applies higher penalties in such cases.
• In Kosovo, the Police Serious Crimes Unit has been designated as responsible for the investigation of crimes against journalists and coordinators have been appointed at courts - an initiative credited with speeding up the successful prosecution of cases that had been pending for four years.^[1]
• In Colombia, the Public Prosecutor’s Office has a special sub-unit that conducts investigations into crimes committed against journalists.
• In Ukraine, the Criminal code provides for specific offenses that criminalise different types of attacks against journalists and interference with their journalistic activity. The Office of the Prosecutor General and the national police have developed methodological guidance in relation to criminal investigations of such crimes. Furthermore, around 750 police investigators have been trained on effective prosecution of offenses against journalists and some degree of specialised expertise has been developed in every region and district.

• In Serbia, the Public Prosecution Office issued in 2015 an instruction giving high priority to criminal offences committed against persons performing work in the area of information and requiring collection of statistics on such cases. It is also in the process of issuing a new mandatory instruction providing guidelines on how to proceed in relation to crimes against journalists, also envisaging high priority for these cases. Serbia has also set up a Standing Working Group on Journalist Safety, which aims to ensure rapid and efficient communication between the Public Prosecutor’s Office, the Ministry of Interior and journalists’ associations when journalists are threatened or attacked. Contact points were established within their administrations to ensure faster reporting and resolution of such cases.
• In Montenegro, in 2018 the Supreme prosecutor issued a mandatory instruction to all prosecutors to intensify work on cases of violence against journalists and requested monthly reports on achieved results.
• In Mexico, the Special prosecutor for crimes against freedom of expression has the authority to direct, coordinate and supervise investigations and, where appropriate, the prosecution of crimes committed against journalists.^[2] It has however convicted perpetrators in very few murder cases of journalists. Journalists and civil society have found that the office is slow to exercise its authority, partly because too much onus is given to first ascertaining whether the crime is connected to the victim’s work as a journalist, rather than proceeding with an investigation and then determining whether this is the case.^[3]
• In Sweden, the Action Plan on “Defending free speech – measures to protect journalists, elected representatives and artists from exposure to threats and hatred” lists a number of actions aimed at strengthening the investigation/prosecution of crimes committed against journalists, notably:
  • Offences that threaten fundamental rights and freedms and the free formation of opinion are investigated by the Swedish police authority’s democracy and hate crime units where these exist;
  • When there is suspicin that crime has been committed with the intent of influencing the free formation of opinion, the Swedish police authority must pay special attention to whether such threats or harassment can lead to refraining by a journalist (or an elected representative or artist) from “operating in the public sphere”;
  • A web-based internal training prgramme is being developed for all police officers who might deal with human rights offences (including for those who register reports), in order to increase their skills and knowledge;
  • The Gvernment intends to monitor the Swedish police authority's work in this area and to require reporting on the measures taken;
  • The Chief Public Prsecutor has submitted to the Government a survey and analysis of how courts assess the penal value of offences against elected representatives. The survey indicates the need for the Swedish police authority and the Swedish prosecution authority to strengthen the procedures for receiving victims and registering reports, in order to speed up investigations and legal proceedings. This work is also likely to have an impact on journalists.
  • The Swedish prsecution authority has been commissioned to report on the measures that have been taken to strengthen the authority's ability to intervene against threats and violations on the internet.

• In Estonia, to deal with cases of threats and harassment on the internet, a specialised court for online harassment has been set-up and specific expertise has been provided to judges and law enforcement officials.

Special judicial or non-judicial inquiries/ inquiries by independent specialised bodies

• In Serbia, the Commission for the Investigation of murders of journalists was founded in 2013 to reopen unsolved cases of journalists killed (cases of Curuvija, Pantic, and Vujasinovic) and to raise awareness on threats and safety issues. The Commission is composed of representatives of the journalistic community, the Ministry of internal affairs and from Serbia’s national security body - the Security Information Agency (BIA). It oversees mixed investigative teams of police inspectors and representatives of security services for every murder case. It also helps track/report attacks on journalists. The Commission helps collect evidence and provides other assistance to the investigation, operating at the investigation stage, but not at the trial stage. Its work has led to criminal charges being brought against four suspects in the 1999 murder of Slavko Curuvija, founder and editor of Serbia’s first private daily newspaper.^[4]
• In Montenegro, an independent commission has been set up involving government officials from the police and the public prosecutor, as well as representatives of media organisations. It monitors the activities of the competent authorities in the investigation of old and recent threats and violence (including murders) against journalists and their property.
• In Ukraine, a multi-stakeholder group comprising representatives of NGOs and LEAs has been set-up by the President’s Administration.
• In the USA, when the police had failed to fully investigate the murder of a California-based journalist, a group of local journalists and editors joined efforts and carried out their own investigation. They uncovered and made public evidence that the police had not pursued and the killers were convicted as a result.

Special provisions for penalties, limitation periods for prosecution and amnesties/pardons 

• In Ukraine, the penal code criminalises the conduct of judges who knowingly deliver unjust verdict, judgment, ruling or order by judge (or judges), including for the purpose of impeding the lawful professional activity of a journalist.
• The Ukrainian, Serbian, Georgian, Swedish, French and Armenian penal codes provide for specific offences in relation to the breach of freedom of expression and/or are devoted to the protection of journalists, providing for higher sanctions that in normal situations:
  • The Ukrainian penal code criminalises “impeding lawful professional activity of journalists”, “threats or violence against journalist”, “intentional destruction or damage to property of a journalist”, “infringement on the life of a journalist”, “taking journalist hostage”;
  • The Georgian penal code criminalises the “encroachment upon freedom of speech” and “unlawful interference with journalists’ profession”;
  • The Serbian penal code criminalises “endangering the safety of a media professional or their next of kin”, “violation of freedom of speech and public appearance” and the “prevention of printing and distribution of printed material and broadcasting of programs”. Furthermore, the Serbian penal code includes provisions that treat certain crimes against journalists (such as murder) as aggravated offenses;
  • The Swedish penal code criminalises “illegal coercion or illegal threat with the intent of influencing the shaping of public opinion or of encroaching on freedom of action within a political organisation or a trade or industrial association and thereby endangers freedom of speech, assembly or association”;
  • The French penal code criminalises “interference with the exercise of freedom of expression in a concerted manner and with threats” and “hindrance, in a concerted manner and by means of beatings, violence, assault, destruction or degradation, to the exercise of freedom of expression”.
  • The Armenian penal code also criminalises hindering journalistic work or forcing journalists to disseminate or not to disseminate information. The sanction is increased if the offence is committed by a public official abusing his/her position. If the acts are committed with violence or threats against journalists or their next of kin, it is punished with imprisonment.

Statistics collection and other measures needed to stem impunity

• In Germany, crimes committed for political reasons are recorded by the criminal police Reporting service. Since 1 January 2016, politically motivated crimes directed against the media have recorded as a separate category.
• In Serbia, pursuant to the instruction issued by the public prosecutor, since 1 January 2016 prosecutorial offices have been keeping statistics of criminal offenses committed against persons who perform work in the public interest in the area of information, as well as in relation to attacks on media web pages. Separate records are kept for each filed criminal charge and include data about the journalist/media actor, the criminal offense, the investigations opened and court decisions rendered.
• In Ukraine, the Prosecutor General’s Office publishes statistical information on registered criminal offenses committed against journalists and the results of the pre-trial investigations. Verdicts, including in cases of threats, assault and murder of journalists, are published on the website of the Unified State Register of Court Decisions.

• Systematic internal inquiries into the quality of performance in the investigation of crimes committed against journalists should be undertaken, with the involvement of media representatives/other stakeholders.
• The setting up of a specialised prosecutor office competent for prosecuting attacks against the physical integrity of journalists and other media actors may be advisable, depending on the severity of the problem. As an alternative, it may be advisable to ensure that prosecution of such crimes is led by the chief prosecutor, rather than a local prosecutor.
• The creation of an independent investigative body for criminal or disciplinary complaints against police agents where Articles 2 or 3 of the Convention are engaged, in order to ensure the independence of investigation.

• The set-up of specialised investigation units with expertise in international human rights, trained on the safety of journalists and other media actors (see suggestions for implementation concerning training for LEAs in section II(B)(d) of this Implementation Guide).
• Specific protocols/methodological guidance should be developed in relation to criminal investigations and prosecution of crimes committed against journalists and other media actors to ensure that investigations and prosecutions into suspected attacks against journalists are conducted effectively, promptly, thoroughly, independently and impartially. These protocols should, inter alia:
  • stress the imprtance that any such investigation/prosecution properly take into account any evidence of a link with journalists’ professional activities, any link with racist attitudes and gender-specific dimensions.
  • Stress that in the cntext of contract killings, investigation/prosecution cannot be considered adequate if genuine efforts have not been made to identify the person(s) who had commissioned the killing
  • Ensure that the authrities act of their own motion, once the matter has come to their attention and that the initiative of the next of kin to instigate an investigation is not required.
  • Ensure that the victim r the next of kin are able to receive information on the investigation/prosecution and present evidence.
  • Ensure that the investigative prcedures are gender sensitive so that women journalists are not dissuaded from reporting offline and from reporting online attacks against them and are provided with adequate support, including psychosocial support;
  • The right f journalists and other media actors not to reveal their confidential sources of information.
  • Prvide guidance on how to investigate threats and other criminal offenses against journalists and other media actors that take place online (including those that are gendered), highlighting that threats and harassment nline that amount to criminal offenses must be persecuted and treated like offline offenses and that threats to life and physical integrity, including rape threats, should be prioritised for prosecution.

Special judicial or non-judicial inquiries/ inquiries by independent specialised bodies

• States should explore the possibility establishing a specialised safety mechanism (e.g., a dedicated commissions of inquiry) responsible for addressing impunity issues, either as a stand-alone entity or as a specialised section or programme within an existing body. Such mechanisms can assist law enforcement authorities responsible for investigation and prosecution, together with parliamentarians, journalists and (other) media actors, in order to ensure thorough and diligent investigation.
• States should explore the possibility of entrusting NHRIs with non-judicial investigations into cases of human rights violations to facilitate fact-finding, without prejudice to the state’s prosecuting and investigating authorities mandate to bring the perpetrators to justice.

Aggravated penalties for public officials who, by neglect, complicity or design, act in a way that prevents or obstructs the investigation, prosecution or punishment of those responsible for the crimes.

• Consider conducting legal reforms to ensure:
  • The remval of limitation periods for the prosecution of violent crimes committed against journalists and other media actors;
  • That amnesties and pardns are provided on an exceptional basis;
  • Intrducing aggravated penalties in relation to public officials who, by neglect, complicity or design, act in a way that prevents or obstructs the investigation, prosecution or punishment of those responsible for these crimes.
  • Pssibly, taking into account their serious nature, recognising crimes against freedom of expression either as a separate category of crimes or as an aggravated circumstance leading to heavier penalties.

Statistics collection and other measures needed to stem impunity

• Reliable disaggregated statistics should be recorded by the authorities on the number of complaints reported, investigations opened, prosecutions and convictions related to threats, attacks against and killings of journalists and other media actors. This data should, inter alia, be disaggregated according to gender with a view of documenting the scale and severity of the problem, including the extent of impunity in order to help to inform strategies for responding to the problem.