Content Regulation / Censorship, Violence Against Speakers / Impunity
Perozo and others v. Venezuela
Venezuela, Bolivarian Republic of
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The European Court of Human Rights found that the Russian Government violated a journalist’s right to life by failing to conduct an effective investigation into her murder. Anna Politkovskaya, a renowned investigative journalist covering, inter alia, alleged violations of human rights in the Chechen Republic, was shot dead in 2006. The Russian authorities immediately instituted a criminal investigation into her murder that lasted ten years and resulted in the conviction of five individuals, including government officials. However, Ms. Politkovskaya’s relatives complained that the authorities failed to investigate the role and involvement of State agents in the murder and that the intentionally delayed investigation permitted those involved in the murder to escape justice. Further, the relatives insisted that the Russian authorities did not attempt to identify the intellectual author of the murder. The European Court held that the Russian authorities chose to focus on a single line of enquiry and did not explore allegations that the Federal Security Services (FSB) or Chechen officials were involved in the murder.
Applicants are the relatives of Anna Politkovskaya, a renowned Russian investigative journalist covering, inter alia, alleged violations of human rights in the Chechen Republic and who was an adamant critic of President Putin’s politics. She was shot dead in the elevator of her apartment building in Moscow in 2006. On October 6, 2006, on the same day when she was killed, the prosecutor’s office of Moscow opened a criminal investigation under Article 105 § 2 (b) of the Russian Criminal Code (“murder of a person committed in connection with his or her professional of civic duties”). The case was later transferred to the department for the investigation of particularly important cases, namely the Prosecutor General’s Office for investigation.
On August 27, 2007, the Prosecutor General of Russia stated at a press conference that there had been serious progress in the investigation of Ms. Politkovskaya’s killing, and that ten people had been arrested. A list of ten people detained in connection with the journalist’s murder was disclosed to the public on August 29, 2007. The same month, four people, D.M., I.M., S.Kh. and P.R, were arrested in connection to the murder: two brothers who made phone calls near Ms. Politkoyskaya’s building and whose car was seen leaving the area on the day of the killing, as well as two police officers.
In June 2008, D.M., I.M. and S.Kh were formally charged with contract killing in conspiracy, while the police officer (P.R.) was named as the leader of the organized criminal group, and was additionally charged with abuse of powers and extortion. At some point, R.M, a brother of D.M. and I.M., fled Russia using a forged passport, issued by staff at the department of interior. At some point R.M. was put on an international wanted list.
First set of court proceedings
During the 2008-2009 court proceedings, D.P, a high ranking officer of the Moscow City Department of the Interior, was questioned as a witness for the prosecution. He admitted that, acting in his professional capacity, he organized and conducted surveillance on Anna Politkovskaya shortly prior to her assassination. A certain L.-A.G. was questioned as a witness.
On February 19, 2009, having heard the prosecution and defense, the jury delivered a not-guilty verdict in respect to S.Kh., P.R., D.M. and I.M. On February 20, the Moscow Circuit Court acquitted the four suspects. On June 25, 2009, in the appeal proceedings, the Supreme Court of Russia quashed the judgment of February 2009 and remitted the case to the Circuit Court for a fresh examination.
On unspecified dates the charges against P.R. were dropped, while L.-A.G. was indicted. In May 2011, R.M., who escaped on a forged passport to Belgium, was arrested in the Chechen Republic. At an unspecified time, a certain O.G. informed Anna Politkovskaya’s relatives that he possessed crucial information about the murder. Later, at the relatives’ request, the Prosecutor questioned O.G., who implicated D.P., a high-ranking officer of the Moscow City Department of the Interior. On August 26, 2011, the Basmannyy District Court of Moscow ordered to detain D.P., who eventually entered a guilty plea and claimed that L.-A.G. and S.Kh. asked him to organize unauthorized surveillance of Mr. Politkovskaya. He also claimed that L.-A.G. expressed his intention in killing the journalist, paid D.P. to help organize the murder and instructed him to buy a gun and to pass it on to R.M. In his testimony, L.-A.G. never explained the motives for the murder, but mentioned that it was ordered by a well-known person living in the United Kingdom.
On December 14, 2012, D.P. was sentenced to eleven years’ imprisonment. The case against S.Kh., R.M., D.M., I.M., and L.-A.G. was transferred to the City Court for trial.
Second set of court proceedings
The City Court commenced a jury trial against S.Kh., R.M., D.M., I.M., and L.-A.G. in June 2013. A year later, on May 29, 2014, the jury found all five guilty of Anna Politkovskaya’s murder. Subsequently, the City Court delivered a judgment in which it found that L.-A.G. “accepted an offer from an unidentified person who had been dissatisfied with publications by Anna Politkovskaya in Novaya Gazeta concerning violations of human rights, the embezzlement of State property, and abuse of public office by civil servants.” On the basis of the jury’s guilty verdict, the City Court characterized the murder as one committed by an organized group for a fee in connection with Ms. Politkovskaya’s work.
The City Court named L.-A.G. as the organizer of the killing and sentenced him, as well as R.M., the hitman, to life imprisonment. The remaining three men were given imprisonment sentences between twelve and twenty years. The men appealed the verdicts, but the Supreme Court of Russian found that the guilty verdict was based on a thorough examination of the evidence.
The Complaint to the European Court of Human Rights
Relying on Article 2 of the European Convention on Human Rights (right to life), the Ms. Politkovskaya’s relatives complained that the State had not carried out an effective investigation into her murder. They argued that “the Russian Federation [had] failed to fulfil its negative obligation under Article 2 of the Convention in this case as numerous officers and agents of the Federal Security Service and the police [had] organised the surveillance of the victim as well as assisted the perpetrators in carrying out the assassination”. [para. 49]
Besides, although investigations had led to the conviction of several men, it had not been sufficient to discharge the obligation to carry out an effective investigation, because the people who had commissioned to carry out the killing had not been identified, despite the fact that the investigation had gone on for almost ten years.
The European Court of Human Rights (Court) began by reiterating that the obligation to protect life under Article 2 of the European Convention on Human Rights (Convention) in its procedural limb required that there should be some form of effective official investigation when individuals had been killed as a result of the use of force, either by State officials or private individuals. In assessing whether an investigation was effective, the Court looked at several factors, including the adequacy of investigative measures, the promptness of the investigation, and attempts to identify the intellectual author of the crime.
Whether the investigation was adequate
The Court first analyzed whether the investigation was adequate, meaning that it was “capable of leading to the establishment of the facts and, where appropriate, the identification and punishment of those responsible.” [para. 69] The investigation’s conclusions should be based on thorough, objective and impartial analysis of all relevant elements satisfying the positive obligation to protect lives through the law. The nature and degree of scrutiny to satisfy the minimum standard of effectiveness depend on the circumstances of the particular case.
The Court added that in assessing the adequacy of investigations under Article 2 it looks at several essential inter-related parameters:
The Court concluded from the outset that Mr. Politkovskaya’s relatives were included in the investigation fully. It explained that the State authorities did not have a duty to investigate every claim made by a relative of the deceased.
The Court’s analysis thus focused on Russia’s compliance with its obligation to carry out an effective investigation into the contract killing of an investigative journalist.
The Court reiterated that the obligation to conduct an effective investigation was an obligation not of result but of means. Since Ms. Politkovskaya was an investigative journalist, it was of “utmost importance” that authorities looked for any links between the crime and her professional work. The Court referred to Recommendation CM/Rec (2016) 4 on the protection of journalism and safety of journalists and other media actors, in which the Committee of Ministers recommended that the conclusions of an investigation must be based on a thorough, objective and impartial analysis of all the relevant elements, including the establishment of whether there was a connection between the threats and violence against journalists and other media actors and the exercise of journalistic activities or contributing in similar ways to public debate. [par. 73]
Turning then to the investigation at issue, the Court pointed out that it led to the conviction of five persons directly responsible for the killing, and thus produced tangible results. However, the Court stressed that an investigation into a contract killing could not be considered adequate if no efforts had been made to identify the person who had commissioned the crime and paid for it.
The Court considered that it had scarce information from the Government regarding the scope of the investigation in relation to those who had commissioned the crime. From the information submitted by the Government, the Court was able to observe that the domestic investigation’s only hypothesis regarding the identity of the person who had commissioned the killing was that he had been “a well-known Russian former politician in London” and that he had died in 2013. However, they had not provided any documents from the actual case file, had not given details of the international requests for help they had sent in connection with that theory nor explained what investigative steps had been taken to shed light on that person’s role in the crime in the years after his death.
The Government had also not explained why the authorities had chosen to focus on that single line of enquiry, despite its own submissions to the Court stating that such killings required a multi-stranded approach. Besides, in the Court’s view the State should have explored the applicants’ allegations that FSB officials or representatives of the Chechen administration had been involved in arranging the murder. Courts should have explored these options more in the light of Anna Politkovskaya’s journalistic work covering the conflict in Chechnya.
In the light of the aforementioned reasons, the Court concluded that the investigation into the journalist’s killing was not adequate.
Whether the investigation was carried out promptly and with reasonable expedition
The Court then turned to analyze the requirement of promptness and reasonable expedition of the investigation. The Court noted that in the context of an Article 2, the State must provide “highly convincing and plausible reasons to justify the length of the proceedings.” [para. 80]
Here, the Court was not convinced that the Russian authorities provided plausible reasons for the delay in the investigation. Additionally, the Court declared that it did not matter that the investigation produced numerous investigative files if it did not lead to tangible results in respect to those who ordered the killing. Therefore, the Court concluded the investigation into Anna Politkovskaya’s killing breached the promptness and reasonable expedition requirement of the procedural obligation under Article 2 of the Convention.
Taking all the above into account, the Court found that Russia violated the Ms. Plitkovskaya’s right to life under the procedural limb of Article 2 of the Convention and awarded 20,000 EUR in non-pecuniary damages to her relatives as compensation for the harm.
Joint concurring opinion of Judges Jäderblom and Keller
Judges Jäderblom and Keller, despite being in agreement with the other judges in holding that the investigation into Anna Politkovskaya’s killing was not effective, opined that the Court should have elaborated more on what would amount to an independent investigation and what elements would need to be present in order to satisfy the parameter of an effective investigation.
The judges explained that when the applicants raised concerns about the impartiality of the investigations during the domestic proceedings, the national authorities did not react to the allegations made and failed to take any steps to ensure the independence of the investigation. Similarly, the allegations made before the Court regarding the possible lack of independence on the part of the State authorities were not acknowledged or assessed in any way. Thus, by failing to make this assessment, the Court had effectively bypassed analysis of an important element of an effective investigation and failed to examine the allegations fully.
Joint dissenting opinion of Judges Dedov and Poláčková
In their dissenting opinion, Judges Dedov and Poláčková stated their disagreement with regards a violation of Article 2 of the Convention in its procedural limb. In their opinion, there had been an effective investigation as the authorities had achieved the essential purpose of the investigation into Anna Politkovskaya’s killing, namely both the cause of the victim’s death and the persons directly responsible for the killing were identified.
Although acknowledging that the intellectual author’s of the murder were not identified and prosecuted, the judges felt that it was not sufficient to conclude that the investigation was ineffective. In their opinion, the Russian authorities had no information that would have resulted in identifying the mastermind behind the killing. Moreover, the two dissenting judges believed that Russian authorities had not made any significant oversights and omissions.
As for the requirement that an investigation be carried out promptly and with reasonable expedition, the judges pointed-out that an investigation began the day after Ms. Politkovskaya’s murder and the authorities took sufficient steps to collect and secure evidence relating to the killing.
As for the length of the proceedings, ten years might constitute an excessive period for an investigation under Article 6 (the right to a fair trial) of the Convention. However, as for a violation of Article 2, “in view of the complexity inherent in the investigation of a contract killing, and in the absence of any indicators pointing at periods of conspicuous inactivity on the part of the investigators, we are of the opinion that the investigation and the court proceedings in the present case did not breach the promptness and reasonable expedition requirement.” The judges concluded that the investigation into Anna Politkovskaya’s killing had not violated Article 2.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The European Court of Human Rights expanded the protection of freedom of expression by stressing that when it comes to killings of journalists, the authorities must make a real effort to identify the intellectual authors of the crime. Here, the Russian authorities’ investigation led to the conviction of five men. However, the investigation and the conviction took ten years during which time Russian investigators failed to follow-up on allegations about the involvement of senior government officials in the killing. Thus, the judgment expands the positive obligation to investigate right to life violations. Although the Court maintained that an effective investigation was an obligation of means, rather than results, it added that in cases involving contract killings it was of “utmost importance” that authorities looked for any links between the crime and the professional work of the journalist.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
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