Violence Against Speakers / Impunity, National Security, Political Expression
Vietnam v. Ta Phong Tan (The Case of Blogger Ta Phong Tan)
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The European Court of Human Rights found that the Azerbaijani Government had violated a journalist’s right to life under Article 2 of the European Convention on Human Rights by failing to conduct an effective investigation into his murder. Elmar Huseynov, a prominent journalist in Azerbaijan who was known for being critical of the Government, was shot dead in March 2005. The authorities in Azerbaijan instituted a criminal investigation into his murder that lasted over twelve years. Mr. Huseynov’s wife filed a complaint to the European Court of Human Rights, which subsequently found that the investigation had not been effective, adequate or prompt. The European Court of Human Rights was particularly critical of the authorities’ refusal to provide Mr. Huseynov’s wife with access to the case file, and the fact the authorities did not take all reasonable measures to secure the prosecution of those suspected of being responsible for the murder. It ordered the Azerbaijani Government to pay compensation of 20,000 EUR for moral damage to Mr. Huseynov’s wife.
Elmar Huseynov was a prominent, independent journalist in Azerbaijan, and editor-in-chief of the weekly magazine Monitor. He was critical of the Government of Azerbaijan, as well as its opposition. Over the years, various civil and criminal proceedings had been brought against him for the publication of critical articles about the President of Azerbaijan and members of his family, as well as members of the Parliament, the Government and other State officials. Moreover, copies of the magazine had been confiscated on several occasions and the domestic authorities had suspended its publication. It was reported that he regularly received threats following the publication of his pieces, and he had once been threatened with death by a police officer because he was writing about the President and his family.
On March 2, 2005, Mr. Huseynov was shot dead in his apartment building after returning from work. His murder received attention from local and international press, and was unanimously condemned by various politicians, international organisations, and local and international NGOs.
On the same day as the shooting, criminal investigations were instituted for murder and illegal possession of weapons. Several actions were taken to investigate Mr Huseynov’s death, such as an inspection of the scene of the crime, an immediate post-mortem examination of the body, and forensic, ballistic and chemical trace examinations of evidence gathered from the scene (including the suspected weapon). Mr Huseynov’s wife was also questioned as a witness. In late March 2005, Mr. Huseynov’s wife was granted victim status.
In April 2005, the Prosecutor General reclassified the criminal case as acts of terror and illegal possession of weapons. The investigation was handed over to the Ministry of National Security. In May 2005, two Georgian nationals were identified as suspects involved in the murder and an international arrest warrant was issued (with notices being posted via Interpol). The two individuals had fled from Azerbaijan after the murder. They were subsequently linked to the murder through forensic examinations carried out by the US Federal Bureau of Investigation.
Subsequently, the Azerbaijani authorities asked the Georgian authorities to extradite the two suspects. The Georgian authorities refused on the basis that they were Georgian nationals. Nonetheless, the Deputy Prosecutor General of the Republic of Georgia undertook to institute criminal proceedings against the suspects at the request of the Azerbaijani authorities in case of the transfer of the criminal case to the Georgian authorities. Various investigative actions were conducted by the Georgian authorities at the request of their Azerbaijani counterparts, such as the search of the two suspects’ flats and the questioning of various people. A number of investigative steps were also taken between 2006 and 2009. By February 2016, the criminal proceedings were still ongoing.
Mr. Huseynov’s wife requested, on several occasions, that the authorities provide her with information about the progress of the investigation, and access to documents relating to the investigation. Although oral updates were given to Mr. Huseynov’s wife by the authorities on at least one occasion, the authorities consistently relied on domestic law (Articles 87 and 102 of the Code of Criminal Procedure) to refuse her access to the case file and relevant documents before the investigation came to an end.
The case was brought to the European Court of Human Rights by Mr. Huseynov’s wife, Ms. Rushaniya Saidvna Huseynova. Relying on Article 2 (right to life) and Article 10 (right to freedom of expression) of the European Convention on Human Rights, Ms. Huseynova alleged that her husband had been murdered by State agents because of his journalistic work, and that the domestic authorities had failed to conduct an effective investigation into the murder.
The European Court of Human Rights (Court) began by considering whether the case was admissible.
The Court found that the complaint could not be dismissed for non-exhaustion of domestic remedies since there had been no identifiable decisions or actions by the national prosecuting authorities that the applicant should have challenged before the domestic courts. The Court also took into account the fact that the applicant, having no access to the material in the case file during the criminal investigation despite repeated requests, could not have effectively challenged such actions or decisions in court. The Court then went on to consider whether the complaint had been filed within six months from when Mr. Huseynov’s wife (the applicant) knew or should have been aware about the ineffectiveness of the remedy. The Court concluded that it was reasonable for the applicant to wait until February 2010 to file the complaint, since at no stage had the investigation become passive or inactive.
The Court then turned to the merits of the case. The main issues before the Court were, firstly, whether the State was responsible in some way for the murder of Mr. Huseynov and, secondly, whether the domestic authorities had failed to conduct an effective investigation into his death. These issues are referred to respectively as the substantive and procedural limbs of the right to life under Article 2 of the European Convention on Human Rights (Convention).
The substantive limb of Article 2 of the Convention
The Court had to decide on the answer to two questions under the substantive limb. Firstly, whether the State authorities were involved in the murder of Mr Huseynov and, secondly, whether the domestic authorities knew or ought to have known at the time of the existence of a “real and immediate” risk to the life of Mr. Huseynov and failed to protect it.
In response to the first question, the Court considered that not enough evidence was given in order for the Court to find beyond all reasonable doubt that the applicant’s husband was murdered by State agents or that the State was behind his murder.
In response to the second question, the Court noted that in appropriate cases Article 2 of the Convention will place a “positive obligation on the authorities to take preventative operational measures to protect an individual or individuals whose lives are at risk from the criminal acts of another individual.” [para. 98] For such an obligation to arise, it must be proven that “that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of a particular individual or individuals from the criminal acts of a third party, and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk.” [para. 99] Turning to the circumstances of the case at hand, the Court held that not enough evidence was given to show that the law-enforcement authorities had been aware of any danger to the journalist’s life or had held any information which might have given rise to such a possibility. The Court also noted the fact that the applicant did not dispute that, prior to the murder, no official submissions were made to the police about a risk to life.
In light of the above, there was no violation of the substantive limb of Article 2 of the Convention.
Procedural limb of Article 2 of the Convention
In relation to Article 2 of the Convention, the Court observed that this also required that there should be some form of effective official investigation following the killing of an individual from the use of force. It noted that an investigation must be effective in the sense that it is capable of identifying and eventually punishing those who are responsible for the crime. The Court also reiterated that “[t]his is an obligation not of result, but of means.” [para. 106] This meant that reasonable steps should be taken to secure the evidence concerning the incident, and the authorities should act in a prompt and reasonably expedited way. The Court also noted that the next of kin must be involved in the procedure to the extent necessary to safeguard their legitimate interests.
In the case at hand, the Court acknowledged that criminal investigations were instituted immediately upon the murder of Mr. Huseynov and numerous investigative actions were taken. However, the Court noted that investigations were still ongoing and the perpetrators had not been yet prosecuted. In this regard, the Court went on to illustrate a number of shortcomings in the criminal investigation carried out by the domestic authorities.
Firstly, although two individuals were identified as suspects, the authorities had failed to take all measures available to them in order to secure the prosecution of the suspects. The Court recognized that proceedings could be hindered by the fact that the suspects were in the territory of another State (i.e. Georgia), which had refused to extradite them. Nevertheless, the Court found that the Azerbaijani authorities were not prevented from examining the feasibility of transferring the criminal case to the Georgian authorities for prosecution in Georgia, as was contemplated by a number of international legal instruments to which both Azerbaijan and Georgia were parties (e.g. the European Convention on Extradition, the 1993 Minsk Convention, and the Treaty on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters of 1996). The Court noted that no explanation had been given by the Azerbaijani authorities for not pursuing this route to prosecution.
Secondly, although Mr. Huseynov’s wife was granted victim status in the investigation, she was constantly denied access to the case file during the investigation. The Court criticised the domestic law that permitted such denial of access, observing that it “deprived [Mr. Huseynov’s wife] of the opportunity to safeguard her legitimate interests and prevented any scrutiny of the investigation by the public.” [para. 113]
Thirdly, the Court noted that the criminal investigation was carried out for over twelve years and was, therefore, not conducted promptly.
Fourthly, the Court held that the authorities had not taken adequate steps during the investigation to sufficiently inquire into the motives behind the killing of Mr Huseynov, and to investigate the possibility that the attacks could have been linked to his work as a journalist. The Court stated that “[i]t was apparent that his murder could have a ‘chilling effect’ on the work of other journalists in the country. In such circumstances, there was every reason for investigating authorities to explore with particular diligence whether the murder, which appears to have been carefully planned, could be linked to Mr Huseynov’s journalistic activities, or to come up with another plausible explanation for the motives behind the murder.” [para. 115]
Taking all the above into account, the Court found that Azerbaijan had violated the right to life under the substantive limb of Article 2 of the Convention because the authorities had not conducted an adequate and effective investigation into the murder of Mr. Huseynov.
Article 10 of the Convention
Although the applicant also claimed a violation of Article 10 of the Convention since “her husband had been killed because of his journalistic activity”, the Court did not consider it necessary to examine it separately from the violation of Article 2 of the Convention under its procedural limb. The Court also reiterated that there was no evidence to establish that Mr. Huseynov was murdered by a State agent, that the State was behind the killing, or that the State failed to protect his right to life in accordance with its positive obligations. In light of the foregoing, the Court decided it was not necessary to deal separately with a complaint in relation to the right to freedom of expression.
The Court awarded 20,000 EUR in non-pecuniary damages to the wife of Mr. Huseynov as compensation for the harm caused by the violation of Article 2 of the Convention.
Partly Dissenting Opinions of Judges Nussberger and Vehabović
Judges Nussberger and Vehabovic disagreed with the majority’s view that it was not necessary to analyse if there had been a violation of the right to freedom of expression under Article 10 of the Convention. The Judges argued that finding a violation of Article 2 of the Convention had lost a certain degree of its stigmatising effect and, therefore, the majority decision in this case did not “reflect the existential threat to human rights and democracy posed by murders of journalists that are not adequately investigated”. [para. 5] The Judges criticised the majority for not developing the jurisprudence around the procedural aspect of Article 10 of the Convention. The Judges opined that, by doing so, the Court did not give enough prominence to the motives behind the killing of a journalist. According to the Judges, the potential motives behind the murder of a journalist differ substantially from the motives behind the murder of an “ordinary individual” (e.g. a wish to silence them).
The Judges believed that, in cases concerning the murder of journalists, the same approach that the Court has applied in cases of racial discrimination should be adopted. In cases involving racial discrimination, a violation under just one provision has been found to be insufficient because of the nature of the wrongdoing and the intensity of the human-rights violation. The judges reminded the majority that the murder of journalists is one of the most extreme forms of censorship, and should be analysed under both Article 2 and Article 10 of the Convention.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision expands expression since the European Court of Human Rights (Court) considered, in a case involving the murder of a prominent journalist, that the authorities must conduct an adequate and effective investigation into the circumstances surrounding the killing. The Court reiterated that such an investigation must be prompt, and the authorities must pursue all measures available to them to obtain the prosecution of suspects. Of particular relevance to freedom of expression is the Court’s emphasis on the fact that, in cases of murder that could have a “chilling effect” on journalists, the authorities must explore with particular diligence whether the murder was motivated by journalistic activity.
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.
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