Violence Against Speakers / Impunity
Restrepo Barrientos v. El Colombiano Newspaper
Nominations Are Now Open for the 2024 Columbia Global Freedom of Expression Prizes. Learn more and nominate here.
Closed Expands Expression
Global Freedom of Expression is an academic initiative and therefore, we encourage you to share and republish excerpts of our content so long as they are not used for commercial purposes and you respect the following policy:
Attribution, copyright, and license information for media used by Global Freedom of Expression is available on our Credits page.
The European Court of Human Rights concluded that Ukraine violated Articles 2 (Right to life), 3 (Prohibition of Torture) and 13 (Right to an Effective Remedy) European Convention on Human Rights in respect of the applicant’s deceased husband. The applicant’s husband, Mr Gongadze, was a journalist who disappeared in September 2000. In November 2000, Mr Gongadze’s relatives learned from a short news article that an unidentified, decapitated body had been found. On examining the body, the relatives identified jewelry and marks of an injury corresponding to that of Mr Gongadze. From that date on, it was alleged that the prosecutor had begun to actively impede the investigation. The Court found a violations of Article 13 (Right to an Effective Remedy) due to the failure to properly investigate the case and an inability to claim for criminal injury under the national law. The Court further considered that the lack of information provided to the deceased’s relatives caused serious suffering which amounted to degrading treatment contrary to Article 3 ECHR.
Mr Gongadze (the applicant’s husband), was a journalist. He disappeared in September 2000 in circumstances that have not yet been “fully established” by the authorities [para. 8], despite the several demands and requests from the applicant. Several police officers were eventually charged with the kidnap and murder of Mr Gongadze. Mr Gongadze was the editor-in-chief of an online newspaper. He was known for his criticism of the allegedly undemocratic initiatives of the Ukrainian authorities and corruption amongst State officials. He was actively involved in awareness-raising in Ukraine and abroad for the problems regarding freedom of speech in his country. For months prior to his disappearance, he had been telling his colleagues and relatives that he had been “receiving threats and was under surveillance” [para. 10]. Mr Gongadze had written a letter to the Prosecutor General, requesting him to take protective measures. This request was refused.
On 2 November, the decapitated body of an unknown person was discovered. The relatives learned about this discovery from a brief article in the newspapers on 10 November 2000. On examining the body, it appeared to be that of Mr Gongadze. Different circumstances led to the allegation that the prosecutor actively impeded the investigation. More than a month after the discovery, the applicant was allowed to participate in the identification of the body. As she was under stress, she was “unable to make a positive identification of the body” as being that of Mr Gongadze [para. 30]. The applicant maintained that she was never directly informed by the investigating authorities about the results of different examinations, but that she learned about them from the media. Eventually, in January 2001 the Prosecutor General informed Parliament that there was a “99,64% probability” that the body found was that of Mr Gongadze [para. 37]. However, the identity could not be confirmed since witnesses claimed to have seen Mr Gongadze alive. This information was also not confirmed. In February 2001, the applicant was informed that additional evidence had been found which confirmed that the body found was that of Mr Gongadze. An investigation into the murder was initiated. The applicant requested full access to the case-file, but this request was denied. In May 2001, the Minister of the Interior announced that two drug users, who had presumably killed Mr Gongadze, had died and that the case was thus solved. The Minister stated that the murder had been spontaneous without any political motive. However, the applicant was later informed by the General Prosecutor’s Office (hereafter, “GPO”) that additional information had been found and that the preliminary investigation was not yet over. Different requests made by the applicant in regard to the investigation were denied. On 15 January 2003, the chairman of the parliamentary ad hoc committee on the case announced that members of the police were responsible for the death of Mr Gongadze. The role of senior officials of the Ministry of the Interior in the death of Mr Gongadze was also investigated. In May 2003, a former police officer was arrested and charged with setting up a criminal group with the participation of the police. He died in prison in unclear circumstances. Letters from this police officer appeared in the media, in which he accused the police and senior officials of kidnapping and killing Mr Gongadze. In October 2003, an official of the Ministry was arrested on suspicion of involvement in the disappearance of Mr Gongadze. He allegedly ordered the destruction of important documents. In August 2005, the applicant finally got access to the criminal case file.
The judgment paid attention to the political and international context of the case, being that since 1991 eighteen journalists had been killed in Ukraine and the fact that the case attracted the attention of many international organisations. In 2005, after a new president was elected, the investigation was reopened. The report of the committee investigating the murder of Mr Gongadze concluded that the kidnap and murder of Mr Gongadze had been organised by the former President of Ukraine and the late Minister of the Interior. The report also noted that the GPO had failed to take any action or to react to the conclusions of the committee.
The main question before the Court was whether the right to life, as laid down in Article 2 ECHR, was violated by the Ukrainian Government. The applicant alleged that the Government had violated Article 2 ECHR, because the death of her husband resulted from a forced disappearance and that the authorities had failed to protect his life. The applicant also complained that the investigation was not coherent and effective, which resulted in a procedural violation of this same article. The Court assessed the case as follows.
Regarding the alleged failure to protect the right to life, the Court considered that this fundamental right extends to a positive obligation on authorities to take measures to protect individuals whose lives are at risk from criminal acts of others. This obligation must not constitute an impossible or disproportionate burden. For a positive obligation to arise, it must be established that “the authorities knew or ought to have known” that a ‘real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party existed” [para. 165]. The Court noted that Mr Gongadze had requested the Prosecutor General to take protective measures, which was refused. According to the Court, authorities should be aware of the vulnerable position of a journalist who covered politically sensitive topics in relation to those in power at that specific time. The GPO is moreover entitled and obliged to supervise the police and the lawfulness of actions taken by them. The response of the GPO to Mr Gongadze’s letter was blatantly negligent, the Court considered. Given the information that was available at the time of the judgment, the Court expressed serious doubts as to the genuine desire of the authorities under the previous government to thoroughly investigate the case. The Court concluded that there had been a substantive violation of Article 2 ECHR.
The positive obligation to protect an individual’s life also requires an effective investigation when an individual has been killed by the use of force. In the case of an investigation into an alleged unlawful killing by State agents, in order for the investigation to be effective the “persons responsible for and carrying out the investigation must be independent from those implicated in the events” [para. 176]. The investigation must also be effective in the sense that it is capable of leading to a determination of “whether the force used in such cases was or was not justified in the circumstances and to the identification and punishment of those responsible” for the killing [para. 176]. This is an obligation of means, not of result. Promptness and reasonable expedition are also required in this context. The Court considered that during the investigation, until the end of 2004, the authorities were “more preoccupied with proving the lack of involvement of high-level State officials in the case than with discovering the truth” behind the kidnapping and murder of Mr Gongadze [para. 179]. The Court concluded that there had been a procedural violation of Article 2 ECHR.
The applicant alleged that the circumstances around the (investigation into the) killing of her husband, mostly the atmosphere of fear and uncertainty, had forced her to leave the country, which caused her suffering in violation of Article 3 ECHR. Article 3 ECHR prohibits torture and inhumane or degrading treatment or punishment.
The Court considered that the attitude of the authorities towards the applicant and her relatives has caused serious suffering, which amounted to degrading treatment. The applicant had received contradictory statements from the authorities about her husband’s fate for years. The applicant was also refused access to the relevant material in the case file. The applicant was only granted access in August 2005. The Court concluded that Article 3 ECHR had been violated.
The applicant complained of a lack of effective remedies, which would result in a violation of Article 13 ECHR. Article 13 requires a thorough and effective investigation capable of leading to the identification and punishment of those responsible for the deprivation of life, next to effective access for the complainant to the investigation procedure. The Court considers that for more than four years, no effective criminal investigation can be said to have been conducted. The Court therefore finds that the applicant was denied an effective remedy in the context of the death of her husband.
The Court awarded 100,000 Euros (approx. USD $119,000 at the time), the full sum claimed by the applicant, in respect of pecuniary and non-pecuniary damage and costs and expenses.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Court concluded that Article 2 had been violated in respect of the killing of a journalist, the applicant’s husband. The Court underlines that States should be aware of the vulnerability of journalists that cover (politically) sensitive topics.
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.
Let us know if you notice errors or if the case analysis needs revision.