I remember well the murder of Slavko Curuvija. At that time, I was working in Prijedor, which is in Republika Srpska, the mainly Serb entity in Bosnia and Herzegovina. Prijedor is one town in Bosnia and Herzegovina where horrible atrocities were committed against non-Serbs and for a long time it was considered a black hole due to the significant presence of war criminals. At that time local residents, especially Serbs, were paying particular attention to what was happening in neighbouring Serbia, since Belgrade continued to exert a very strong influence on the Serb entity.
It is important to remember that the murder of Slavko Curuvija dates back to one of the darkest periods of the recent history of Serbia, when the country led by Milosevic, after the years of conflict in neighbouring republics and the internal conflict in its southern province of Kosovo, was facing an international military campaign led by NATO which resulted in 79 days of airstrikes across Serbia and Montenegro. I recall that, even during those dark times, my local colleagues showed disbelief at the news of his murder. Back then, I would never have imagined that, 24 years later, the murder would still be unsolved.
That seems such a long time ago. The world has deeply changed since then, Serbia itself has changed and has become a different country on its path to the EU, which is not free of obstacles and problems, as we all witness every day.
Yet, many things have not changed. Many things have remained stuck in the past and no light has been shed on those. The murder of Slavko Curuvija, as well as those of Dada Vujasinovic, Milan Pantic, the journalists in Kosovo, certainly fits into this category. Today, 24 years later, there is finally progress and hopefully we will be able to close that chapter soon. Yet, much more progress remains to be made concerning the other cases.
The fact that the perpetrators are still free and that they are part of society clearly indicates that they are enjoying impunity.
But what is impunity? And how can it be defined?
Impunity: connecting the dots
In international human rights law, the topic of impunity has often been dealt with in the context of transitional justice, when societies emerge from situations of dictatorship or conflict and they need to address the legacy of extensive human rights violations and crimes that took place during those years. It is exactly in this context that I would place the murders of the journalists and I would rely on tools and principles used in transitional justice to address this issue. I think this is an important point as we cannot separate the fate of the journalists from what was going on at the time in the region and also because part of the work of the journalists was closely related to uncovering crimes or exposing corruption and wrongdoings of those in power at that time.
We will therefore rely on principles and human rights standards that are applicable in situations where a transitional justice approach is helpful. Transitional justice has already been a topic for discussion in the countries of former Yugoslavia. Unfortunately in many cases it is a concept that was misunderstood since it was associated with the unsuccessful truth and reconciliation commission created in Serbia in 2001, which was seriously criticised for its lack of impartiality, both inside and outside the country. In fact, the existing principles and standards in term of transitional justice would be completely at odds with the approach taken at that time. I will examine those in the next sections.
International principles against impunity
Both the UN and the COE level provide a number of tools that are very helpful to unpack this issue.
In particular, at the UN level, there is a whole set of principles against impunity, the “Updated Set of principles for the protection and promotion of human rights through action to combat impunity”.
Impunity is clearly defined in the UN principles, as “the impossibility, de jure or de facto, of bringing the perpetrators of violations to account - whether in criminal, civil, administrative or disciplinary proceedings - since they are not subject to any inquiry that might lead to their being accused, arrested, tried and, if found guilty, sentenced to appropriate penalties, and to making reparations to their victim”. The UN principles, which are very often referred to in contexts of transitional justice, identify the obligations of states on the basis of the right to know, the right to justice as well as the right to reparations/guarantees of non reoccurrence. Concerning our specific cases, it is in particular the right to justice and the right to know that are of most immediate relevance.
The Council of Europe, in its guidelines to eradicate impunity for serious human rights violations, recalls the UN principles and further develops those standards based on the existing caselaw of the European Court of Human Rights. In the guidelines, “impunity arises where those responsible for acts that amount to serious human rights violations are not brought to account” and it is “caused or facilitated by the lack of diligent reaction of institutions and state agents to serious human rights violations”. The guidelines state that combating impunity is important from three points of view: as a matter of justice for the victim; as a deterrent against further violations of human rights; as a way of upholding rule of law and creating trust in the public system.
Both documents contain a number of measures and principles to better guide the action of states when eradicating impunity. Those principles regulate issues like the conduct of investigations and the quality of such investigation, but also the right of victims to reparations and the right of the communities to know. In this document, we will focus mostly on those aspects relevant to the investigation and prosecution of perpetrators and we will make reference to other principles when relevant.
Effect of impunity for crimes against journalist
The impact of impunity on the freedom of media is devastating. Following the Council of Europe approach, we can easily identify three effects of impunity on freedom of media and journalists. Firstly, the victims and their families are denied the right to justice and reparations and this is the first obvious consequence. Secondly, if such crimes are not punished, there is no longer the deterrence which is the result of criminal sanctions. Perpetrators will feel encouraged to repeat crimes. A further consequence of this lack of accountability is a chilling effect on other journalists and media workers which will legitimately fear for their safety and thus avoid uncovering problematic topics. Thirdly, such impunity will also have an impact on society as a whole, which is deprived of the right to receive information as a result of this chilling effect, and this creates doubts concerning the effectiveness of the public system to deliver justice, undermining thus the rule of law. This is a common scenario today in Serbia, where there has been only a partial reckoning of the past years and where many episodes of the 90s still remain to be clarified.
As we have seen above, both the UN and COE consider the conduct of an investigation as an important instrument to find the perpetrators and address impunity. This is a key aspect of the process and very relevant to the cases under examination. However, investigations into crimes are also relevant from the point of view of human rights, law since these are part of the procedural obligations of states to investigate certain crimes.
In its jurisprudence, the European Court of Human Rights has concluded that the positive obligation to protect the right to life needs to be read in conjunction with the state obligation to grant everyone in their jurisdiction the rights and obligations foreseen in the ECHR. Such a positive obligation requires states to put in place effective criminal law provisions that protect the right to life and therefore deter offences against persons. Such criminal law provisions need to be supported by effective law enforcement for the prevention, suppression, and punishment of such crimes.
This implies that, in case of suspicious deaths, states are required to conduct an effective official investigation when individuals have been killed, not only by state agents, but also by unknown perpetrators.
In other words, based on what stated above, an investigation into a murder that is not effective has often been considered by the European Court of Human Rights as a violation of the right to life. It is also worth recalling that in a case against Croatia , it does not matter whether the murder itself took place before the entry into force of the Convention, as long as the investigation was still open when the Convention entered into force. The obligation to investigate is an ongoing investigation.
Standards for an investigation
According to the Principle 19 of the UN Set of Principles, states “shall undertake prompt, thorough, independent and impartial investigations of violations of human rights and international humanitarian law” and later on they should “take appropriate measures in respect of the perpetrators, particularly in the area of criminal justice”. In addition, families and relatives of victims should be granted legal standing in subsequent proceedings. According to the UN Set of Principles, limitations to prescriptions are also justified for the purpose of combating impunity.
Besides the Set of Principles, the case law of the European Court of Human Rights is quite helpful in defining the standards that an investigation needs to meet in order to comply with the procedural obligations foreseen under the European Convention.
In first place, investigations into murders perpetrated allegedly by or in collusion with state officials need to be started ex officio, they cannot be left to the initiative of the relatives of the victims. Especially in cases of contract killings, i.e. ordered by someone else, the investigation cannot be limited to the hitman, but it needs to identify the intellectual author of the crime, i.e. the one who commissioned it. And this is already a first point which might worth exploring into the case of the murdered journalists. In particular, this becomes even more relevant because when the victim is a journalist, it is of utmost importance for the investigation to check the links between the crime and the professional activity of the victim.
For what concerns the standards of the investigation, four standards become relevant: independence, adequacy, promptness and reasonable expedition, public scrutiny and the participation of the next of kin.
Independence is understood as a lack of independence of those conducting the investigation from those implicated in the events. This needs to be not only a hierarchical or institutional independence, but also a practical independence. There is the need to examine the independence in its entirety and not just an abstract assessment.
Adequacy is understood in the sense that the authorities must take whatever reasonable steps they can to secure the evidence concerning the issue at stake, like testimonies, forensic evidence, autopsy if required. The conclusions must rely on an impartial, thorough, and impartial analysis of all relevant elements, covering all lines of inquiry.
For what concerns promptness, this is a requirement of article 2 itself. The investigation needs to be prompt, to start immediately, and proceed with reasonable expedition: the passage of time affects the quality of the investigation and the chances of it being completed.
For what concerns public scrutiny, there must be sufficient scrutiny into an investigation or its results to secure accountability in practice or in theory. However, the victim's next of kin need to be involved in the investigation, which however does not mean that the investigative authorities need to satisfy every request of the next of kin.
From all the above and without conducting a detailed analysis of the overall case files, two issues at first seem to be relevant from the point of view of the ECHR jurisprudence.
The first is the fact that the investigation in the case of the murder of Slavko Curuvija did not start before 2013, i.e. 14 years after his murder. Serbia ratified the European Convention in 2004, the investigation started almost 10 years later. This gap of almost 10 years appears difficult to justify. It is even more difficult to justify for the other cases where no progress seems to be taking place.
The second is the difficulty in finding the masterminds of such crimes and the fact that the current investigation is covering only the persons who organised and carried out the murders. All evidence seems to point to the political leaders at that time, namely Slobodan Milosevic and his wife Mira Markovic, yet their names are not mentioned at all in the current proceedings, nor they are mentioned in other similar proceedings. This is a very important element to take into account as it shows the limits of the current approach which seeks the prosecution of the state security operatives and of the hitman. The limits of this approach are mostly determined by the context in Serbia where, for instance, even the president of the Commission in charge of investigating the murder of journalist has received death threats and so did the police officer leading the investigation.
It is unclear whether prosecution will achieve its goals and whether the public will be able to know all the details surrounding the murder of Slavko Curuvija and of the other journalists.
In the case of Daphne Caruana Galizia, the report on her murder and the relevant lessons learned suggest an approach that could complement the criminal prosecution and integrate its shortcomings as it would present a wider picture that is not emerging from the current prosecution in Serbia. Drawing again the parallel with transitional justice, where the prosecution of war criminals can easily coexist with truth seeking initiatives like truth commissions, in a similar way a public inquiry could better explain the situation around the murders including the role of the political leadership at that time, while criminal justice would sanction the organisers and perpetrators. A similar commission of inquiry does not exist in today’s Serbia: in my understanding, the existing body like the Commission to investigate the murder of journalists has a different role, i.e. that of facilitating the investigations by the competent authorities while at the same time keeping a form of pressure on them by maintaining the issue alive in Serbia’s society.
The question remains whether such public inquiry is possible. In Malta, the emotions and public frustration together with international pressure were key to generate the momentum that led to the establishment of the public inquiry. More importantly, all developments in Malta took place in the period immediately after the murder. In Serbia the situation appears to be different: while for instance the investigation into the murders of journalists features in the EU progress reports and there is some international attention, I am personally more sceptical about whether there could be some public pressure on the government to further clarify these issues. Experience tells that public protests, even if frequent, they soon run out of steam and very often the government is simply waiting them out, even in cases where large parts of society are mobilised and NGOs conducted active campaigns. Especially with the current government, it seems difficult to generate the momentum for a tectonic change as it would require to discover the truth about the murder of journalists: in this case, it appears more productive to conduct an intensive, day by day fight for incremental progress in the different investigations.
Safety of journalists
Freedom of expression
This content is part of the Media Freedom Rapid Response (MFRR), a Europe-wide mechanism which tracks, monitors and responds to violations of press and media freedom in EU Member States and Candidate Countries. The project is co-funded by the European Commission.