JOINT PARTLY DISSENTING OPINION OF JUDGES NUSSBERGER AND VEHABOVIĆ

I. Killing of journalists – a fundamental threat to Convention values

1 . Nothing can have a more chilling effect on freedom of expression than the murder of a courageous and well-known journalist when the perpetrators of the crime are not identified. We cannot agree with the majority that in such a case it is “not necessary” to analyse Article 10 of the Convention. [1] It is more than necessary.

2 . In the context of the present case it is worthwhile recalling the reaction of the Parliamentary Assembly of the Council of Europe:

“8. The Assembly strongly condemns the murder of Elmar Huseynov, editor of the weekly magazine Monitor, and the climate of fear that this murder has spread amongst the opposition press. It deplores the legal and administrative harassment to which opposition newspapers continue to be subjected and the difficulties in setting up and operating independent and critical television channels.”

3 . More generally, point 19 of Recommendation CM/Rec(2016)4 of the Committee of Ministers to member States on the protection of journalism and safety of journalists and other media actors reads as follows:

“19. Investigations must be effective in the sense that they are capable of leading to the establishment of the facts as well as the identification and eventually, if appropriate, punishment of those responsible. The authorities must take every reasonable step to collect all the evidence concerning the incident. The conclusions of the investigation must be based on thorough, objective and impartial analysis of all the relevant elements, including the establishment of whether there is 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. State authorities are also obliged to investigate the existence of a possible link between racist attitudes and an act of violence. The relevance of gender-related issues should also be investigated.” [2]

4 . The Chamber has held that there was a procedural violation of Article 2 of the Convention in that the domestic authorities failed to carry out an adequate and effective investigation into the circumstances surrounding the killing of Elmar Huseynov. We fully subscribe to this finding, but consider that this is not sufficient in order to capture adequately the human-rights violations in this case.

5 . In recent years the Court has extensively developed its case-law on procedural violations of Article 2 of the Convention. This provision has been applied not only to deaths resulting from the intentional use of force by agents of the State, but has been expanded to include all situations where the responsibility for a death was not efficiently or speedily investigated, even in “everyday cases” such as road-traffic accidents [3] and medical malpractice. [4] Thus the finding of a procedural violation of Article 2 has to a certain degree lost its stigmatising effect. Taken alone, and not in combination with Article 10, it cannot by any means reflect the existential threat to human rights and democracy posed by murders of journalists that are not adequately investigated.

II. Case-law of the Court on the procedural limb of Article 10 of the Convention

6 . It is true that the procedural aspect of Article 10 of the Convention has not yet been comprehensively developed in the Court ’ s case-law, although several steps in this direction have been taken.

7 . Thus, the Court has emphasized that public debate is possible only if opinions and ideas can be expressed without fear. [5] In this context it has confirmed that the protection of freedom of expression may call for positive measures, even in the sphere of relations between individuals. [6] Article 10 has thus been considered to be relevant in assessing the adequacy of protective measures necessary to prevent violence against journalists.

8 . However, the Court has not to date found it necessary to specify the obligations arising under Article 10 with regard to investigations into the killing of journalists, i.e. the measures to be taken in order to punish those responsible . In 2005, in the case of Adalı v. Turkey [7] , the Court was confronted with the inadequate investigation into the murder of a journalist in the “TRNC” who had received death threats on several occasions because of his articles and political opinions. Although the Court held that the widow ’ s allegations that her husband ’ s killing was related to his activities as a journalist were not implausible and that the authorities failed to inquire sufficiently into the motives behind the killing, [8] the Court came to the conclusion that “the applicant ’ s allegations arise out of the same facts as those examined under Article 2 of the Convention”. [9] It did not therefore consider it necessary to examine this complaint also under Article 10 of the Convention. This approach was upheld in the case of Uzeyir Jafarov v. Azerbaijan , which concerned not a death but a violent attack on a journalist. [10]

III. Shortcomings in the Court ’ s approach to the lack of an investigation into the killing of journalists

9 . The consequence of the approach the Court has adopted so far is that the motives behind the killing of a journalist are not given any prominence. In contrast to this approach, we consider that – seen from the human-rights perspective – the potential motives behind the killing of a journalist, namely, the wish to silence a critical voice in a country, differ substantially from the motives behind what might be called “ordinary crimes”. To analyse the lack of an investigation in both cases in exactly the same way under Article 2 appears to us inadequate. Admittedly, the majority sought to take into account the “chilling effect” of the murder and confirmed the duty of the authorities “to explore with particular diligence whether the murder, which appears to have been carefully planned, could be linked to Mr Huseynov ’ s journalistic activities”. [11] But, in our view, this is a crucial aspect of the judgment which should have been taken up and elaborated further under Article 10 of the Convention.

10 . The Court often resorts to the “not-necessary-formula” if it deems that the analysis of a case under one provision of the Convention sufficiently reflects all the human-rights violations at stake, so that any further analysis would have no added value.

11 . But in cases such as the present one, an analysis under Article 10 does have an added value.

IV. Interpretation of procedural violations of Article 2 in the light of Article 10 of the Convention

12 . It follows that it is necessary to interpret the lack of an investigation into the killing of a journalist in the context of the Convention as a whole. An analysis under the procedural limb of Article 2 taken together with Article 10 of the Convention could reveal the specific features of this fundamental human-rights violation.

13 . Such an approach would be similar to the approach followed in cases of racial discrimination, where the Court has established that the finding of a violation of Article 2 of the Convention is not sufficient to adequately reflect the wrong-doing and the intensity of the human-rights violation. [12] In such cases the Court has held: “Treating racially induced violence and brutality on an equal footing with cases that have no racist overtones would be to turn a blind eye to the specific nature of acts which are particularly destructive of fundamental rights.” [13] In our view, the same can be said for violence against journalists, although here the value at stake is not discrimination, but freedom of expression. But the destructive effect on human rights is the same. Therefore, the Court should not turn a blind eye to the fact that, as explained in a discussion paper issued by the Commissioner for Human Rights, murders of journalists are to be understood as “the most extreme form of censorship”. [14]

14 . In our opinion, this point is crucial in this particular case and in this particular political context. If it is omitted, the central question of the case, which is of utmost importance for democracy, political pluralism and human rights in general, has not been addressed adequately.

[1] Paragraph 24 of the judgment, point 4 of the operative p rovisions .

[2] Resolution 1456(2005) of 22 June 2005 of the Parliamentary Assembly of the Council of Europe on the Functioning of democr atic institutions in Azerbaijan.

[3] See Rajkowska v. Poland (dec.), no. 37393/02 , 27 November 2007; Anna Todorova v. Bulgaria , no. 23302/03 , § 72 , 24 May 2011; Prynda v. Ukraine , no. 10904/05 , § 50 , 31 July 2012.

[4] See , for example, Vo v. France [GC], no. 53924/00 , § 89 , ECHR 2004 ‑ VIII , and Å ilih v. Slovenia [GC], no. 71463/01 , § 192 , 9 April 2009 .

[5] See Dink v. Turkey , nos. 2668/07 and 4 others, § 137 , 14 September 2010 .

[6] S ee Özgür Gündem v. Turkey , no. 23144/93 , 16 March 2000, § 43 , ECHR 2000 ‑ III; Dink v. Turkey , cited above, § 106; and Fuentes Bobo v. Spain , no . 39293/98, § 38 , 29 February 2000.

[7] See Adalı v. Turkey , no. 38187/97, 31 March 2005.

[8] See Adalı v. Turkey , cited above , § 231.

[9] See Adalı v. Turkey , cited above, § 260.

[10] See Uzeyir Jafarov v. Azerbaijan , no. 54204/08, § 71 , 29 January 2015.

[11] Paragraph 115 of the judgment .

[12] See Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 146 , 160-168 ECHR 2005 ‑ VII ; Å ečić v. Croatia , no. 40116/02, § 70 , 31 May 2007; Angelova and Iliev v. Bulgaria , no. 55523/00, § 117 , 26 July 2007.

[13] See Nachova and Others v. Bulgaria , cited above, § 160; Balázs v. Hungary , no. 15529/12, § 52 , 20 October 2015.

[14] Commissioner for Human Rights, Protection of Journalists from V iolence, Issue Discussion Paper, CommDH/(2011)44, p.8.