Obligation to Protect Journalists and the Media from Violence and Threats as Part of BiH’s European Integration

Author: Harun Išerić

Attacks and threats against journalists: a brief overview

The hotline for journalists, operated by the BH Journalists Association, recorded 70 reported cases of violations of journalist rights and media freedoms in 2021, including 16 cases of physical and verbal attacks and threats. Online space is the dominant source of attacks and threats (70%), particularly targeting female journalists and other women in the media. The BH Journalists, however, note that many of the attacks remain unreported for two reasons: lack of trust in the judiciary and investigative bodies among journalists, and lack of knowledge of rights and protection instruments. On the other hand, in 2021, the regional network Safejournalists.net registered 26 cases of attacks, threats and pressures on journalists and the media in BiH. Of that number, 17 cases involved: death threats, verbal and other threats, and political pressures on journalists and the media, and eight were cases of threats and violence against women journalists. The 2021 The Western Balkan Journalist Safety Index – Bosnia and Herzegovina reads that as a rule, attackers are not prosecuted, and that a particular problem lies in the practices of prosecutors’ offices, which mostly issue orders not to conduct investigations of reported attacks and threats against journalists (due to the absence of elements of a criminal offence), and even when they are prosecuted, the sentencing policy is very lenient.

The importance of this issue is confirmed by the publication of the Special Report on the Status and Cases of Threats against Journalists in BiH (2017) by the Human Rights Ombudsman Institution of BiH. This is the only reaction of public authorities to the attacks and threats targeting journalists, considering that the Special Report resulted from the BiH Council of Ministers’ recommendation to the Ombudsman Institution.

EU integration and protection of journalists and the media

In October 2022, the European Commission recommended that BiH be awarded the EU membership candidacy status, contingent upon eight conditions to be fulfilled by the public authorities, including the following: Guarantee freedom of expression and of the media and the protection of journalists, notably by ensuring the appropriate judicial follow-up to cases of threats and violence against journalists and media workers. In the Analytical Report accompanying the Opinion on BiH’s application for EU membership, the European Commission noted that political pressure and intimidation against journalists are a cause for concern; physical and verbal attacks take place without systematic institutional response and effective protective measures, and therefore the key priority No. 12 to be fulfilled before the BiH’s membership application gets approved was: Guarantee freedom of expression and of the media and the protection of journalists, notably by (a) ensuring the appropriate judicial follow-up to cases of threats and violence against journalists and media workers (…).

In the Report on BiH for 2022, the European Commission concluded that no progress had been made on this priority. Through the Subcommittee for Justice, Freedom and Security, the European Commission continuously repeated recommendations concerning this issue [ensure systemic action of institutions in cases of intimidation and attacks on journalists (recommendation from the second meeting (30 Nov – 1 Dec 2017), ensure impartial, fast, detailed, independent and effective investigations and proper judicial practices in cases involving threats and attacks against journalists and media workers (recommendation from the third meeting (28-29 Nov 2018), ensure protection of journalists and systematic institutional prosecution of threats and violence against journalists (recommendation from the fourth meeting (5-6 Dec 2019).

In view of threats facing journalists in the EU as well, in September 2021, the European Commission issued Recommendation 2021/1534 on ensuring the protection, safety and empowerment of journalists and other media professionals in the European Union, which can serve as a guide for BiH in the fulfilment of priority No. 12 and subsequent Commission recommendations.

Referring to the EU positions is important because EU integration and the fulfilment of obligations arising from this process constitute a segment of BiH’s foreign policy and, accordingly, the jurisdiction of the state of BiH. BiH can derive the competence to fulfil priority No. 12 as well as the EC’s Recommendation from this legal fact, especially if the Entities, within the scope of their competences, fail to help the BiH-level authorities to comply with their international obligations within the EU integration process (Article 3(2)2)) of the BiH Constitution).

How can the Commission priority No. 12 be fulfilled?

Research published in early 2022 pointed to six key shortcomings in BiH’s legislation and practice that should be improved, in order to ensure efficient prosecution of attacks and threats against journalists and the media. These are:

  • insufficient protection in criminal legislation,
  • quality of prosecution investigations and the de facto impunity policy,
  • omissions in collection of statistical data on attacks and threats against journalists,
  • ignorance and failure to understand attacks on journalists as attacks on the freedom of expression,
  • no specialised teams in the police and prosecution,
  • public appearances and behaviour of politicians.

In the parliaments of the Entities and the state of BiH, there were several different (unsuccessful) initiatives aimed at strengthening the criminal-law protection of journalists (list of initiatives is available here). Given that prosecution of threats to journalists based on charges of the criminal offence of “endangering security” has proven to be ineffective, threats and intimidation should be criminalised in a new way, following the examples of Serbia’s Criminal Code (which recognises the criminal offence of persecution) and Croatia’s Criminal Code (which recognises the criminal offence of threats). Also, Entity and state-level legislators should integrate a new criminal offence that would protect journalists more effectively, such as: preventing journalists from performing professional tasks and/or attacks on journalists while performing professional tasks. In any case, the incrimination of offences should also include acts that are committed online, especially when they target women journalists.

The fact that prosecutor’s offices have recently started appointing contact persons for journalists is commendable, such as the Sarajevo Canton Prosecutor’s Office. However, such prosecutors must also acquire specialist knowledge concerning media and journalist rights and freedoms. Such specialisation is also necessary in the police force, and investigative teams should also include representatives of journalist associations. The Council of Europe’s tool, HELP training course on the protection of journalists can be of use. At the same time, it should be noted that conducting a quality investigation with proper investigative means is one of the requirements of the state’s positive obligation arising from Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms. In that regard, in the case of Gaši and others v. Serbia, in September 2022, the European Court of Human Rights found that there was no violation of freedom of expression because the prosecutor’s findings and the rejection of the applicants’ criminal report were not arbitrary or evidently unreasonable, or based on an unacceptable assessment of the facts. Finally, prosecutors must insist on, and courts must implement, a more stringent sentencing policy against persons who threaten, intimidate and attack journalists.

Without accurate and precise statistical data, it is not possible to properly analyse a problem and create an adequate solution mode. The UN General Assembly notes that it is necessary to perform regular monitoring and reporting of attacks against journalists, and collect and analyse concrete quantitative and qualitative data on attacks against journalists, that are disaggregated by different factors, including sex, considering the particular vulnerability of women journalists. For this reason, in the context of the CMS/TMS automated case management system, the HJPC’s conclusion that the CMS/TMS code book should be supplemented by adding a new occupation, journalist, as an occupation – attribute of the party, should be fully implemented. On the other hand, the Ministry of Internal Affairs of the RS keeps records of attacks on journalists. The importance of the existence of official records is further confirmed by the discrepancies between data held by non-governmental organisations; different data collection and classification criteria, which poses a challenge in confronting this social phenomenon.

Public figures, that is, BiH politicians do not condemn attacks on journalists, but encourage and minimise them, and they discredit journalists. Such behaviour is not in accordance with the recommendations of international and regional organisations.

Finally, the Ombudsman Institution should prepare annual reports on the implementation of recommendations from the 2017 Special Report. In addition, a new body should be established at the BiH level or within the Ombudsman Institution, which would deal with media freedoms. On the other hand, parliamentary bodies (ad hoc or standing ones) can also play a very important role in promoting media freedom and journalist protection. For example, parliamentary committees for human rights and fundamental freedoms should also regularly monitor media freedoms, organise hearings and conduct investigations into the journalist rights situation. Similar bodies have existed in the region. In Serbia, there is the: Standing working group for the safety of journalists in the Republic of Serbia and Working group for the protection and safety of journalists of the Government of the Republic of Serbia, and in Montenegro the: Commission for monitoring the actions of competent authorities in investigations of cases of threats of violence against journalists, murders of journalists and attacks on media property of the Government of Montenegro (last established in 2021).

Ultimately, it should be emphasised that if the environment for journalists and media is not safe and favourable, it will be very difficult for them to perform their function in a democratic society, assigned to them by the European Court of Human Rights – the function of public watchdog – guardians of public interest, especially in vulnerable and transitional democratic societies, such as that of Bosnia and Herzegovina. In addition, BiH has voluntarily assumed obligations in the European integration process, including that from key priority No. 12. Failure to comply points to weak institutions that do not take the communication with the EU seriously, and further degrades BiH’s reputation on European and international scene. The priority No. 12 must be implemented, not for the sake of the EU, but for the sake of BiH society, and strengthening its democratisation and culture of respect for the media and freedom of expression.

The views expressed in this text do not necessarily reflect the views of the Initiative for Monitoring European Integration’s members or the Initiative itself.