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Guidelines For Prosecutors On Cases of Crimes Against Journalists
Guidelines For Prosecutors On Cases of Crimes Against Journalists
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An integral part of the international community’s efforts to end the impunity of
those who attack journalists is bringing the perpetrators to justice and holding
them accountable for their actions in accordance with the rule of law and human
rights. These guidelines identify elements that should be analyzed in the decision-
making process when an alleged crime is committed against a journalist and put into
perspective the measures that may command the public interest, public order and
the safeguard and confidence into the administration of justice.
2
When conducting, supervising or providing advisory assistance to an investigation
in relation to an alleged crime committed against a journalist, prosecutors should
initiate or recommend a contextual analysis of the nexus between the alleged crime
and the media activities, past and present, of the victim. Depending on circumstantial
considerations, occurrence of crimes against journalists, legal systems and national
legislation prosecutors may need to conduct or consider a more thorough analysis.
3
All crimes against journalists should be prosecuted when both the sufficiency of the
evidence and public interest standards are met. Prosecutors should bear in mind
the possibility of enhanced or escalating offences. The public interest may render
inappropriate the implementation of non-prosecution resolutions such as non-
judicial treatment or civil diversion measures.
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The confidentiality of journalists’ sources must be protected in the exercise of the
mission of informing the public. Consequently, journalistic sources are confidential
and should be treated as such at every stage of the investigation and judicial
proceedings. Prosecutors must ensure the protection of confidential data that may
lead to the identification of a source in situations where journalistic sources could be
revealed by means of investigation or during the proceedings.
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Crimes against journalists often have a transnational dimension requiring the sharing
of information between states, facilitated by international judicial co-operation
based on multilateral conventions, regional treaties, bilateral mutual legal assistance
(MLA) agreements or other arrangements between states. There are practical steps
prosecutors can take to make international co-operation more effective.
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FOREWORD
The active involvement of prosecutors is often the first step in identifying and bringing to justice perpetrators
of crimes and attacks against journalists. Over the past decade, a journalist has been killed on average every
four days. In addition, close to 9 out of 10 cases of killings of journalists remain judicially unresolved according
to UNESCO data. When a journalist is attacked, society as a whole pays the price, as freedom of expression and
access to information, which are bedrocks of modern societies, erode away.
It is therefore of paramount importance to enable journalists to keep the citizenry informed and hold public
institutions and official accountable. In order to foster a free and safe environment for media workers, UNESCO
and the International Association of Prosecutors (IAP) have entered into cooperation to strengthen the role of
prosecutors to fight against impunity for crimes and attacks against journalists.
In this regard, we are pleased to present these Guidelines for Prosecutors on Cases of Crimes Against Journalists.
As those responsible for initiating prosecutions and, in some cases, supervising criminal investigations,
independent public prosecutors have a crucial role to play in protecting journalists and in ensuring that crimes
and attacks against them do not go unpunished. Along with the judiciary and security forces, they play an essential
role in reinforcing the “three Ps” (Prevention, Protection, and Prosecution), to ensure journalists’ safety and
thereby contribute to the building of just and peaceful societies, by reinforcing the rule of law and fundamental
freedoms.
As such, these guidelines aim to enhance the knowledge and capacities of prosecutors by (1) providing insight on
the conduct or supervision of investigations and advisory assistance to law enforcement agencies ; (2) identifying
stages and determination for proceedings in cases of crimes against journalists and preserving the integrity of
evidence ; (3) emphasizing the importance of protection of journalistic sources ; (4) discussing the protection of
victims, witnesses, immunities, and advantages for collaborating witnesses ; (5) examining the issue of mutual
legal assistance in criminal matter and extradition ; (6) recognizing the specificities of gender-based crimes and
other forms of hate crimes on journalists ; and (7) analyzing post-conflict jurisdictions and transitional justice
issues.
In doing so, these guidelines fall within the global strategy for the implementation of the UN Plan of Action on the
Safety of Journalists and the Issue of Impunity, which aims to create a free and safe environment for journalists
and media workers, with a view to strengthening peace, democracy, human rights and development worldwide.
To that effect, since 2013, UNESCO and its partners have trained over 17,000 judicial actors from Latin America,
Africa and the Arab region on international and regional standards on freedom of expression and safety of
journalists.
By considering both civil law and common law systems, it is our hope that those using these guidelines will gain
a deeper understanding of the theoretical frameworks underpinning the right to freedom of expression and the
safety of journalists, as well as the additional skills to put this theory into practice.
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INTRODUCTION AND GENERAL
PRINCIPLES
“
An integral part of the international community’s
efforts to end the impunity of those who attack
journalists is bringing the perpetrators to justice Everyone has the right to freedom
and holding them accountable for their actions in
accordance with the rule of law and human rights. of opinion and expression; this right
includes freedom to hold opinions
Crimes committed against journalists not only
have repercussions on the individuals who are the without interference and to seek,
victims and their families, but they have important receive and impart information
consequences on freedom of expression, freedom
of the press, public access to information and other
and ideas through any media and
fundamental freedoms recognized in international regardless of frontiers.
standards, treaties and conventions.
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IN TRODU CTI ON AND GE NE RAL P RI NC I P L E S
Accordingly, these guidelines recognize the States are urged to support capacity-building,
importance of freedom of expression and of free, training, and awareness-raising among prosecutors
independent, plural and diverse media, both online and and law enforcement officers regarding international
offline. Prosecutors should consider this fundamental human rights obligations and commitments of States
right as essential in building and supporting inclusive in relation to the safety of journalists.
societies, an informed citizenry, the rule of law and
participation in public affairs, and also in holding The roles and functions of journalists, and the news
public institutions and officials accountable. media more generally, are crucial to the maintenance
of a free and democratic society. Prosecutors should
Globally, journalists’ activities often put them at consider the context of the practice of the journalist
specific risk of human rights violations and abuses, activities and the impact on fundamental rights when
including killing, torture, forced disappearance, an alleged crime is committed against an individual
arbitrary detention or arrest, arbitrary expulsion, because of the performance of such activities and
physical and sexual violence, as well as intimidation, conduct, and support or give advisory assistance
threats and harassment of all kinds, including by the to a contextual analysis of the alleged crime before
targeting of their family members. These harmful engaging proceedings.
and dangerous tactics often deter journalists
from continuing their activities or encourage self- These guidelines do not aim to give a special status
censorship, consequently, depriving society of to journalists, all citizens being equal before the law.
important information. The objective is to guarantee a right to exercise the
activities related to journalism under conditions
Therefore, the United Nations calls upon States which allow the realization of fundamental rights.
to bring their laws, policies, and practices into
compliance with their obligations and commitments These guidelines identify elements that should be
under international human rights law to: analyzed in the decision-making process when an
alleged crime is committed against a journalist and
• establish prevention mechanisms or effective puts into perspective the measures that may command
protective measures, the public interest, public order and the safeguard
and confidence into the administration of justice. The
• create special investigative units or appoint application of these guidelines allows consistency
specialized prosecutors, and due process of the public action of prosecutors.
In no way does it restrict the obligations related to the
• adopt specific protocols and methods of
sufficiency of the evidence, the opportunity principle
investigation and prosecution,
or more broadly, to the obligations associated with
• ensure accountability through the conduct of the discretionary power in prosecutorial decisions to
impartial, prompt, thorough, independent, and initiate criminal proceedings according to national
effective investigations into all alleged violence, laws, practice and procedure.
threats and attacks against journalists falling
within their jurisdiction, Both civil law and common law systems were
considered for these guidelines. Therefore, one
• bring perpetrators, including those who may apply part of their content, as some elements
command, conspire to commit, aid, and abet or fit domestic law and practice in accordance with
cover up such crimes to justice, and fundamental human rights and international
standards. In civil law jurisdictions, prosecutors
• ensure that victims and their families have access
conduct the investigations, whereas they do not in
to appropriate restitution, compensation, and
common law jurisdictions.
assistance1.
1
UNHRC, October 1, 2020, A/HRC/45/L.42/Rev.1 https://owncloud.unog.ch/s/joqD-
0qu0R2ZnDgA
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1
CONDUCT OR
SUPERVISION OF
INVESTIGATIONS
AND ADVISORY
ASSISTANCE TO
LAW ENFORCEMENT
AGENCIES
It is recommended that prosecutors receive specialized consider a more thorough analysis. Investigations
training on fundamental rights related to the exercise may then include the entire media environment, the
of the roles and functions of journalists and the links between different groups of persons related to
protection of journalistic sources when: the work of the victim and the potential beneficiaries
of a crime.
• conducting investigations,
This contextual analysis should be carried out early
• supervising investigations, in the investigation process to help identify potential
suspects and motives. All participants in the alleged
• giving advisory assistance to the law enforcement
crime must be identified, including those who order,
agencies, as well as
aid, abet, counsel or procure the offence. When
• making decisions on whether to initiate criminal admissible, such evidence should be presented to the
proceedings court in support of motive, sentencing purposes or for
any other lawful purpose.
which involves journalists in every way.
Critical situations such as assistance to a person in
In relation to investigations, supervision of difficulty, enquiries, detention, or arrest of journalists,
investigations or advisory assistance (formal or in the performance of their duties, should lead to the
informal) given to law enforcement agencies that could establishment of formal protection mechanisms
lead to a direct or indirect identification of confidential related to fundamental rights. Journalistic material
journalistic sources, the prosecutor should identify accessible during those situations could contain
specific measures for the protection of confidentiality information leading to the identification of sources
of journalistic sources, including advice on the and should therefore be handled in accordance with
handling and management of journalistic material. these guidelines (see Chapter 3).
When conducting, supervising or providing advisory When involving the development of crowd control
assistance to an investigation in relation to an alleged strategies, such as during demonstrations, rallies
crime committed against a journalist, the prosecutor or political demonstrations, that may include for
should initiate or recommend a contextual analysis of example, fishnet operations, the prosecutor must
the nexus between the alleged crime and the media promote the establishment of mechanisms to protect
activities, past and present, of the victim. Depending the exercise of the roles and functions of journalists,
on circumstantial considerations, occurrence of without restriction to freedom of movement or any
crimes against journalists, legal systems and national other fundamental rights when the roles and functions
legislations a prosecutor may need to conduct or are exercised in an authorized area.
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2
STAGES AND
DETERMINATION FOR
PROCEEDINGS IN CASES
OF CRIMES AGAINST
JOURNALISTS AND
INTEGRITY OF EVIDENCE
When authorizing proceedings, the prosecutor must In addition, the public interest may render
analyze both the sufficiency of the evidence and inappropriate in these circumstances, the
the public interest in initiating such proceedings. implementation of non-prosecution resolutions such
Decisions must be taken fairly, impartially and with as non-judicial treatment or civil diversion measures.
integrity to secure justice for victims, witnesses, All crimes against journalists should be prosecuted
suspects, defendants, and the public. Transparency when both the sufficiency of the evidence and public
and accountability regarding the decision taken and interest standards are met. Prosecutors should bear
the conduct of the proceedings are crucial to the in mind the possibility of enhanced or escalating
values of justice and equity. The prosecutor should offences.
perform their duties with respect for such values. In
pursuit of the truth, all perpetrators, including the Before authorizing proceedings, the prosecutor must
planners, the financiers and the originators, should be ensure that the investigation is complete and that it
prosecuted where there is sufficient legally admissible sets out how the evidence was obtained to review its
evidence to do so. legality. In certain circumstances, the prosecutor can
proceed with charges, in the absence of a complete
The prosecutor must be convinced of the sufficiency file, when the public interest justifies it, in particular,
of the evidence on the basis of an objective analysis to:
which satisfies the domestic threshold to conclude
that a judge or a court could reasonably convict the • ensure the protection and the safety of the public,
suspect in respect of the offence revealed by the legally including the victims,
admissible evidence. The prosecutor must maintain
this belief throughout the proceedings. • prevent the escape of a suspect,
• considering fundamental rights that could be At each stage of the investigation, before authorizing
hampered or violated by the commission of the proceedings and during the proceedings, the
alleged crime against a journalist, and prosecutor must take steps to ensure the protection,
• assessing whether a victim has been specifically preservation and integrity of the evidence relating to
targeted because they are a journalist or are the case.
undertaking journalistic activities.
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3
PROTECTION OF
JOURNALISTIC
SOURCES
In the highly exceptional circumstances where One should regard as an indirect breach of the
lifting the confidentiality of the journalistic source confidentiality of sources, the fact of seeking to
is the sole investigative element for the resolution of discover the sources of a journalist by means of
the case, all information or evidence that could lead investigations relating to any person who, by reason
to the identification of the source should be sealed of their habitual relations with a journalist, may have
and submitted to a competent judicial authority to information to identify these sources.
determine the conditions of use and treatment. In
the absence of such a judicial process, the prosecutor It is recommended that only prosecutors with
will have to determine whether an overriding and specialized training on protection of journalistic
proportionate imperative of public interest justifies sources should be part of the determination process.
.
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4
PROTECTION OF VICTIMS, WITNESSES,
IMMUNITIES, AND ADVANTAGES FOR
COLLABORATING WITNESSES
In the following situations, a protection programme • of information which reveals or would allow to
should be considered for a journalist and their family discover the location of a protected person or the
members when: location of the facilities used to provide protection
or their change of identity,
• the factual circumstances of a case suggest
that the safety of a journalist or their family is • of information concerning the means and
compromised, methods of protecting protected persons, or
• violent individuals or groups are linked to the • the identity and role of a person providing
alleged commission of a crime against a journalist, protection or helping to provide it, knowing that
or communication could cause serious harm,
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PROTECTION OF VICTIM S , WITNE S S E S , IMMU NI TI E S, AND ADVANTAGE S FOR C OL L ABORATI NG W I TNE SSE S.
2
Council of Europe, Committee of Ministers, Recommendation No. R (97) 13, September
10 1997
10
5
MUTUAL LEGAL ASSISTANCE IN
CRIMINAL MATTER AND EXTRADITION
11
M U TUAL LEGAL A S S ISTANC E I N C RI MI NAL MATTE R AND E XTRAD I TI ON
Legal requirements for satisfying foreign requests in • requested records with particularity, including
obtaining evidence vary in different countries. The the specific data categories requested and date
more intrusive the coercive measures, the higher limitations for the request,
the evidentiary threshold will be to satisfying legal
requirements of the request. Some elements that need • name of the issuing authority and agent, email
to be addressed are: address from a law-enforcement domain, and
direct contact phone number, and
• the need for confidentiality, • email address, phone number, user ID number or
• the need for urgency, username of the requested records holder.
• if the evidence needs to be certified, and/or The preservatory order should be sent to the Law
Enforcement Response Team of the requested
• the translation of the request. communications service provider. Prosecutors should
ask for a confirmation.
It is proposed that the prosecutor maintain c) Request for Extradition
communication with a counterpart in the requested
country, providing contact details for both informal Extradition is the formal procedure by which a state
and formal communication. The request must be requests the forcible return of a person accused or
specific and proportionate. Sending a draft request convicted of a crime to stand trial or serve a sentence
before sending it via official channels is a best practice, in the requesting state.
as it offers opportunities to establish the viability of
requests, resolve issues and speed up their execution. For urgent cases, most extradition treaties provide
for the provisional arrest of a person pending an
b) Electronic Evidence extradition hearing. The prosecutor must act swiftly
and in the public interest to prevent a suspect from
The use of electronic evidence is becoming escaping and defeating the extradition process.
increasingly important in the prosecution of all crime
types, including crimes committed against journalists. When the location of the suspect is undetermined,
Electronic evidence is volatile, easily altered, time the prosecutor may request assistance from law
sensitive and not bound by territorial jurisdictions enforcement in preparing a Red Notice which requests
which can lead to loss of location. Investigators and law enforcement agencies around the world to locate,
prosecutors must act swiftly to identify, locate and arrest and provisionally detain a person pending
preserve electronic evidence. extradition, surrender or other legal proceedings.
Prior to sending any request to a foreign country, the The Red Notice essentially contains two types of
prosecutor should exhaust all national avenues when information: information on the identity of the
attempting to obtain the required electronic evidence. wanted person and information on the offence for
A prosecutor must take steps to initiate preservation which that person is wanted. Red Notices are issued
orders to the communications service provider, in by INTERPOL.
advance of a subsequent request to produce the data
via mutual legal assistance or a production order. When a prosecutor prepares a request for extradition,
Some communications service providers accept they should pay particular attention to the burden
requests for data preservation directly from foreign of proof required, the principle of specialty and the
law enforcement agencies or from prosecutorial principle of dual criminality that may apply. The
authorities. A prosecutor should verify with the prosecutor must present their request to the central
requested authority or communications service authority in their country, which forwards it to the
providers whether an account holder may learn requested country.
about the preservation request and consider their
investigative strategy accordingly. A preservatory
order should contain the following elements:
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6
GENDER-BASED CRIMES AND OTHER
FORM OF HATE CRIMES ON JOURNALISTS
13
7
POST-CONFLICT
JURISDICTIONS
AND TRANSITIONAL
JUSTICE ISSUES
14
8
CONCLUSION
Combatting impunity surrounding attacks against The Rule of Law and the primacy of fundamental
journalists is achieved when the mechanisms rights are at the heart of prosecutorial functions.
and principles referred to in these guidelines and Conducting, supervising, or advising an impartial,
cooperative efforts with other prosecution services or effective and independent investigation into crimes
law enforcement agencies are paramount and central against journalists is crucial to safeguard freedom of
as implementation strategies. These mechanisms are opinion and expression. When prosecutors make fair
a means to achieve the search for truth and justice, decisions, impartially and with integrity to secure
realizing that a prosecutor has an obligation to seek justice to victims and the public, they help maintain
justice while simultaneously protecting society and a free and democratic society. The values of Justice
defending journalists’ rights using an effective and and equity include transparency and accountability
efficient approach. regarding decisions made while proceedings are
conducted. All the above are part of the general
Raising awareness through prosecutorial training will commitment of prosecutors to protect justice, equity,
build capacity and facilitate an important step towards the public interest and the common good.
fighting against impunity. Prosecution services should
develop or offer curricula which include material
relevant to the safety of journalists, protection of
journalistic sources and fundamental rights.
15
Multi-Donor Programme
on Freedom of Expression
and Safety of Journalists
United Nations
Educational, Scientific and
Cultural Organization
The publication of these guidelines has been supported by UNESCO’s Multi-Donor Programme on Freedom of
Expression and Safety of Journalists, and by the Open Society Foundations
The International Association of Prosecutors (IAP) is the only worldwide organization of prosecutors. It has
more than 183 organizational members from over 177 different countries. The Association, whose headquarters
is based in The Hague (Netherlands) is committed to setting and raising standards of professional conduct and
ethics for prosecutors worldwide; promoting the rule of law, respect for human rights and improving international
cooperation between prosecutors’ office.
The content was developed by Sabin Ouellet in partnership with the International Association of Prosecutors. It
received contributions from the UN Special Rapporteur on extrajudicial, summary or arbitrary executions, Agnes
Callamard, Leopoldo Maldonado (Article 19), Simon Clements (Prosecutor, England and Wales), Gary Balch
(International Association of Prosecutors), Sara Carnegie (International Bar Association), Jeanette Manning
(National Association of Attorneys General), Paul Coppin and Antoine Bernard (Reporters without Borders), Filippo
Musca and Jean-Francois Thony (The Siracusa International Institute for Criminal Justice and Human Rights), and
Ricardo Sánchez Pérez Del Pozo (Special Prosecutor’s Office for Attention to Crimes committed against Freedom of
Expression, Mexico).
Sabin Ouellet has notably served as the Chief Prosecutor of the Director of Criminal and Penal Prosecutions (DPCP)
of Québec City. He had previously been Chief Prosecutor of the Office of External Affairs, Security and Development
Bureau, and represented the Québec Director of Public Prosecutions before the International Association of
Prosecutors.
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its frontiers or boundaries. The ideas and opinions expressed in this publication are those of the
authors; they are not necessarily those of UNESCO and do not commit the Organization.
CI-2020/FEJ/ME-2