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Protection of freedom of speech during armed conflicts – HFHR’s amicus curiae opinion in Strasbourg

In May 2018, the Helsinki Foundation submitted an amicus curiae opinion in the case Lefter and Others v. Ukraine and Russia (application no. 30863/14 et al.). In the opinion, we have addressed the problem of protecting journalists who provide information about armed conflicts in the context of the situation of the media covering the war in Eastern Ukraine.

War correspondents taken prisoner

The applicants include Sergiy Lefter, a journalist covering the hostilities in the Donbas region. Mr Lefter reported from Slovyansk, a town where separatists loyal to the so-called “Donetsk People’s Republic” seized a police precinct, the local office of Ukrainian secret service SBU and the city hall. The journalist was detained by militants and held for two weeks in an occupied building. During that time, he was reportedly tortured, subjected to an inhuman and degrading treatment and required to perform forced labour. His notebook computer and mobile phone were also seized and inspected. The domestic proceedings that the reporter initiated in order to investigate the case failed to produce any tangible result. Another applicant in Lefter is Irma Krat, also a Ukrainian journalist who was detained and held in similar circumstances for about six weeks. The journalists have filed their applications to the European Court of Human Rights, alleging violations of Convention’s Article 3 (the prohibition of torture, inhuman or degrading treatment), Article 5 (personal freedom), Article 13 (right to an effective remedy) and Article 10 (freedom of expression). The case was communicated to the Governments of Ukraine and Russia in January 2018.

Amicus curiae opinion 

In its opinion, the HFHR focused on interferences in the freedom of speech. “We wanted to emphasise that journalists covering armed conflicts play a crucial role in informing the public about the course of such conflicts, which encompasses the revealing and publicising of war crimes, human rights violations and other abuse that may accompany armed hostilities. At the same time, the media are increasingly more often targeted by belligerent parties, which means that journalists require special protection. In consequence, we would like to contribute to the development of ECtHR guarantees for war correspondents”, Foundation’s lawyer Konrad Siemaszko says.

The special status of war correspondents is protected by both humanitarian law and human rights law. The Foundation’s opinion presented the standards developed in those systems, which, in accordance with the existing case law of the ECtHR, intersect with each other. “Humanitarian law protects media people from attacks on condition that, among other things, they do not actively participate in hostilities”, Dorota Głowacka, a lawyer working with the HFHR, explains. “In Ukraine, both sides to the conflict often accuse journalists of being biased in their reporting, which is used as a pretext for depriving the media of any protection. In our assessment, these practices pose a great danger to the freedom of expression while bias, or the absence of objectivity, insofar as it does not involve incitement of violence or hate, cannot be equal to “an active participation in hostilities”, Ms Głowacka adds.

In the opinion, the HFHR also presented standards on the protection of journalists as a key condition of their ability to perform their professional role and of the exercise the freedom of expression. According to these standards, which should be respected also during armed conflicts, state authorities not only must refrain from attacking the media but also should pro-actively prevent such attacks. As regards the seizure of a phone and computer owned by one of the journalists – an applicant in this case – the HFHR noted a threat to the protection of journalistic sources, which is an essential element of media freedom. “The Court has so far had no opportunity to address this subject in the context of armed conflicts. At the same time, the guarantees resulting from the reporter’s privilege are a crucial condition of the media’s performance of the “public watchdog” role that coincides the actual reporting of hostilities”, Mr Siemaszko emphasises.

In its opinion, the Foundation also described the general situation of the media in Ukraine and the risks faced by the correspondents covering hostilities in such areas as Donbas. “We have indicated that the Lefter case is a part of a wider, more sinister trend of a drastic decrease of the level of journalists’ safety in Ukraine, an issue raised by OSCE, UN or international journalist associations”, Dorota Głowacka adds.

Russian authorities have responded to the HFHR’s opinion by sending their observations to the Court.

The amicus curiae opinion can be accessed here.

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