Violence Against Speakers / Impunity
Perozo and others v. Venezuela
Venezuela, Bolivarian Republic of
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The Basic Court in Podgorica, Montenegro, acting in the first instance, held that the right to life of Mr. Tufik Softić, an investigative journalist, had been violated after the Montenegrin authorities failed to conduct an effective investigation into attempts on his life. The case was filed after the Montenegrin authorities failed to carry out a meaningful investigation into violent attacks on Mr. Softić in 2007 and 2013. The attacks occurred at a time when Mr. Softić was reporting on serious crime in the country. The Basic Court concluded, after having extensively cited case law from the European Court of Human Rights, that the attempted murder of the journalist Mr. Softić was not investigated at the minimum level required under the right to life as guaranteed by Article 2 of the European Convention on Human Rights. This is the first case in the history of Montenegro where the authorities have been held responsible for failing to investigate attacks on a journalist.
Softic appealed the Basic Court judgment and requested 100,000 EUR in moral damages for the mental suffering caused by the ongoing threats to his right to life and the lack of effective investigation. On July 6, 2018 the Higher Court in Podgorica ruled to increase the damages awarded to Softic by the Basic Court of Podgorica, from 7,000 EUR to 12,000 EUR for failing to perform an effective and adequate investigation into the attacks on the journalist but rejected the remaining 88,000 EUR request as “baseless”.
In early November 2007, investigative journalist Tufik Softić was brutally beaten by two masked men with baseball bats outside his family home. Mr. Softić suffered life-threatening injuries after the attack and was brought to hospital. At the time of the attack, Mr. Softić was employed as a reporter for Radio Berane and a correspondent for the daily newspaper Republika. He had been reporting on drug trafficking in the northern part of Montenegro and had received two threats before the actual attack occurred. Despite the grave nature of the attack, the authorities failed to conduct any meaningful investigation over the next seven years (pre-investigation stage), and the case was never brought before the courts.
It was not until seven years later, in 2014, that Mr. Softić was heard by the state prosecutor for the first time. A criminal investigation was opened, but it was shelved a year and three months later due to a lack of evidence. No relevant activities were undertaken during the pre-investigation stage, and no meaningful activities took place during the following periods of the investigation: from October 20, 2014 to April 1, 2015, and from April 1, 2015 to October 28, 2015, when the investigation was terminated. Among other things, the state prosecutor failed to order the investigating judge to search apartments, facilities, vehicles and persons of those Mr. Softić believed were responsible for the attack, and DNA analysis of the baseball bats that were allegedly used in the attack was only carried out in 2013 – despite the fact the bats were found in 2007.
In August 2013, Mr. Softić was attacked again. On this occasion, an explosive device was detonated in front of his home while he was inside with his family. At that time, Mr. Softić was a correspondent for the daily newspaper Vijesti and a magazine called Monitor. He had been publishing a series of articles detailing connections between criminals and the local authorities in the country. On this occasion, the investigative authorities failed to ever identify any of the perpetrators. After this second attack, in February 2014, Mr. Softić was assigned 24-hour police protection.
In 2016, Mr. Softić sued the State of Montenegro for compensation for the harm caused by the failure to investigate the attempts on his life. His case was filed with the assistance of Human Rights Action and Media Legal Defence Initiative, a national and an international organization respectively that defend journalists’ legal rights. Mr. Softić alleged that his human rights had been violated by the authorities’ failure to conduct an effective investigation into the two attacks, which he believed were aimed at silencing him. Mr. Softić said that, following the attacks, he lives in a constant state of fear that the ineffective investigations into his attacks encourages the perpetrators.
Judge M Brajovic delivered the judgment of the Basic Court (Court). The judgment has been appealed by the state, and the second instance verdict is currently awaited.
Mr. Softić argued before the Court that due to the authorities’ ineffective and inadequate investigation, the state was responsible for non-pecuniary damage caused by the violations of his right to life (Article 2 of the European Convention on Human Rights), the prohibition on torture (Article 3 of the European Convention on Human Rights), and his right to dignity and inviolability of a person (Article 28 of the Constitution of Montenegro).
The Attorney General contested Mr. Softić’s arguments in their entirety, arguing that the lawsuit did not bring substantive and legal evidence before the Court. The Attorney General submitted that the legal responsibility of Montenegro could only be questioned in cases where its bodies acted unlawfully or improperly in the performance of their duties, which they maintained was not the case here.
Judge Brajovic began by noting that the Constitution of Montenegro guaranteed the right to dignity and security, as well as the right to inviolability of physical and mental integrity (Article 28 of the Constitution). Judge Brajovic observed that these were the same rights guaranteed by Articles 2 and 3 of the European Convention on Human Rights (Convention), which was binding on Montenegro.
In addition, Judge Brajovic declared that Article 1 of the Convention placed an obligation on all states to protect the rights enshrined in the Convention. This included an obligation on states to apply the standards set by the European Court of Human Rights in order to meet their obligation to conduct effective investigations. Judge Brajovic concluded that all signatories to the Convention were obliged to conduct an effective investigation into cases of murder or attempted murder. Judge Brajovic stipulated that this was evident from the numerous previous cases from the European Court of Human Rights, such as Juralic v. Croatia, Beganovic v. Croatia, and Jafarov v. Azerbaijan. The judge recalled that the state had an obligation to provide for an effective investigation even in cases where private persons were responsible (citing Amadayev v. Russia in support).
In particular, Judge Brajovic highlighted the need for the authorities to react efficiently when investigating an attempted homicide of a journalist, citing the case Yaşa v. Turkey. Judge Brajovic concluded that the attempted murder of the journalist Mr. Softić was not investigated at the minimum level required under the right to life as guaranteed by Article 2 of the Convention. For instance, the police failed to fully document the victim’s story, interview suspects, and collect evidence. In short, the investigations were insufficient.
In addition, Judge Brajovic awarded Mr. Softić 7,000 Euros as non-pecuniary damages “in the name of incurred and future mental suffering due to violation of [his] personal right to [an effective] investigation and in the name of a threatened and future fear of renewed attempted murder.” Judge Brajovic cited, among other things, the fact that at the time of the attack Mr. Softić worked as a journalist on socially relevant topics such as investigating crime.
Softic appealed the Basic Court ruling requesting 100,000 Euros in damages for his present and future mental suffering due to the violation of his right to life, lack of an effective investigation as well as for the ongoing threats to his life.
Higher Court Ruling
On 8 June 2018, the Higher Court in Podgorica ruled to increase the damages awarded to Softic by the Basic Court of Podgorica, from 7,000 Euros to 12,000 Euros for failing to perform an effective and adequate investigation into the attacks on the journalist. Judge Nenad Otasevic presided over the Court and concluded that the Basic Court erred by not upholding established standards set by the European Court of Human Rights. In particular, the Court faulted the Montenegrin authorities for an unjustified delay in launching the investigation, failing to interview key witnesses and failing to examine critical evidence. In determining the appropriate amount of damages to award, the Court reviewed a range of case law from the European Court of Human Rights relating to violations of Article 2 (right to life) and Article 3 (prohibition of torture), including Skendžić and Krznarić v. Croatia, Application no. 16212/08 (2011); Jularić v. Croatia, App. No. 20106/06 (2011); Dink v. Turkey, App. Nos. 2668/07, 6102/08, 30079/08, 7072/09 and 7124/09 (2010); Huseynova v. Azerbaijan, App. No. 10653/10 (2017); Gongadze v. Ukraine, App. No. 34056/02 (2005); Adali v. Turkey, App. No. 38187/97 (2005); Uzeyir Jafarov v. Azerbaijan, App. No. 54204/08 (2015); Mehdiyev v. Azerbaijan, App. no. 59075/09 (2015); Najafli v. Azerbaijan, App. No. 2594/07 (2012); Kılıç v. Turkey, App. No. 63034/11 (2016). The Higher Court dismissed the additional request for 88,000 Euros, deeming it to be “baseless”.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This decision expands expression by confirming that Montenegro’s failure to effectively investigate violent attacks on a journalist amounted to a violation of his right to life. In doing so, the decision confirms that the jurisprudence of the European Court of Human Rights is binding on the Montenegrin authorities. This is a significant decision for Montenegro, where attacks on journalists continue to be unresolved at an alarming rate. According to the recent expert report “Prosecution of attacks on journalists in Montenegro 2014-2016” an estimated two-thirds of cases of attacks on journalists remain unresolved, including murder, physical violence, threats, attacks on property and incidents in which journalists were prevented or hindered in the performance of their duties.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Dignity and inviolability of persona
art. 149, art. 152, art. 166, art. 207
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