“[In Russia] the killing of journalists is a cheap, easy and virtually risk-free method of silencing critics” - Galina Arapova, Director, Mass Media Defence Centre
“[A]s a foreigner you’re not going to be physically harmed. However if you’re Russian, anything goes. Russian journalists and bloggers are the heroes in this story and it is they who need your defence.” - Luke Harding, The Guardian
As the world’s news headlines were dominated by the breaking of the Global Laundromat by The Guardian working together with a coalition of journalists worldwide, it was an opportune moment to convene the latest Doughty Street Chambers Media Defence Seminar, focusing on threats to journalists and journalism in Russia.
Russia is a dangerous place to be a journalist. The pressure on independent media has grown steadily since Putin’s return to the Kremlin in 2012. In 2016, Russia was ranked 148th on the World Press Freedom Index. Working collaboratively with Reporters without Borders (“RSF”), Doughty Street yesterday brought together a multi-disciplinary group of journalists, lawyers and activists to discuss how best to work to support ‘Journalists at Risk in Russia’.
John Battle, Head of Compliance at ITN opened with a reminder that in Russia, the constitution provides robust protection for free expression, but in practice the picture is very different. Increasingly foreign and domestic journalists are under threat and work at risk facing both censorship and physical violence. In his role, he’d observed the threat to journalists and the need for risk management worldwide increase year on year. Quite quickly John had come to realise how basic laws in Europe like habeas corpus can be taken for granted. The “elasticity” of the law for journalists working under pressure could be deeply worrying. This was not a problem with only legal solutions, but a partnership of lawyers, journalists and politicians was needed to highlight the shrinking space worldwide for public scrutiny and dissent.
Galina Arapova, Director, Mass Media Defence Centre highlighted six key problems in Russia for journalists: impunity for attacks on reporters, violations of the right to protest, misuse of extremism laws, the criminalisation of speech, including through the reintroduction of criminal defamation, the shutting down of debate online and the silencing of civil society through the operation of the “Foreign Agent” laws now being challenged at the European Court of Human Rights. In the last 10 years, over 260 journalists have been murdered in Russia. Only 38 cases saw investigation and conviction. When 9 out of 10 murders are not even prosecuted, she explained killing journalists in Russia is seen as a “cheap, easy and virtually risk-free method of silencing critics”. It helps that activists on the ground in Russia “truly believe in what we are doing”. While the picture is bleak there is work to be done even under repression; together “we are strong”, she explained.
Nani Jansen Reventlow, internationally recognised expert in freedom of expression and Doughty Street Chambers Associate, explored the international legal tools available to challenge repression of journalists in Russia. As a signatory to the European Convention on Human Rights, challenges to the Court in Strasbourg would always be valuable. However, problems both in Russia and at the Court were diminishing its value. The new post-Yukos Russian legislative framework had granted the Constitutional Court the power to permit the Russian State to ignore binding decisions, in violation of Article 46 ECHR. Delay at Strasbourg too could be compounded by the introduction of the new prioritisation criteria, crucial to the reduction of its backlog, but determining that for the main freedom of expression cases could take even longer to reach judgment. Why then bother with Strasbourg? “Not fighting back is not an option”; instead we need to use all the tools we have. Strasbourg is, of course, the most binding of options on the international plane. We should never “underestimate the power of a legal judgment both to support and empower individuals on the ground and as a signal that the international community is aware that what is going on is unlawful”. The Russian Constitutional Court is listening. Its recent jurisprudence has begun to draw heavily on the decisions of the European Court of Human Rights. Similarly, the European Court is becoming more strategic on the cases that matter most, with the Foreign Agent Law cases all fast-tracked to hearing. We should not forget the UN. A whole panoply of special mechanisms could be utilised to draw attention to the situation on the ground in Russia, from the UN Human Rights Committee to the Special Rapporteur on Freedom of Expression, and individual and mass communications could be utilised to engage the attention of the global community and the power of international criticism. The 2015 Concluding Observations on Russia and its compliance with the ICCPR, for example, critically highlight each of the six problems identified by Galina with directed condemnation and recommendations for action.
Luke Harding (The Guardian Bureau Chief for Russia from 2007 – 2011 and the journalist who broke the ‘Laundromat’) told the vivid tale of how he came in 2011 to be refused reentry to the country he called his home (“Russia was now closed to me”). He had been followed, subject to close surveillance, his family home ransacked and bugged. However, it was only when he left the country to write about Wikileaks that his presence was rejected. What had he done? He’d broken one too many taboos. First and foremost, he’d written about the money. Modern Russia was a kleptocracy that did not want to be exposed and writing about the money being sent “offshore” – and particularly about Putin’s money – was not welcome. “Nobody cares about being condemned by liberal lawyers in Russia, instead assets are what matter”. To bring about change; Luke counselled, journalists and lawyers must follow the money. In contrast to the impunity offered in Russia, the Litvinenko inquiry in London had exposed the threats to dissidents from political assassination. The Report of January 2016 was a point of light. Putin had “as a matter of juridical fact” ordered the killing of someone opposed to his rule. This was a fact that could never come to light within Russia. As a foreign journalist working in or outside Russia, he faced his own risks. However, as a “Foreign Agent” working deep under cover at The Guardian offices, Luke could never face the threats to which those speaking out as Russians could be exposed. It was an unspoken rule that foreign journalists would never be physically harmed. The Russian people were the heroes of this story as the threats they faced were both to their lives and their families. Luke hoped for the day when their work would be cherished and honoured.
Keina Yoshida, a member of the Doughty Street International Media Defence Panel ended the discussion with action points for lawyers and journalists. For those travelling to Russia, don’t stop reporting, but have a contingency plan. Take advice, assess your risks and plan for them. Understand the context of your reporting for your risk assessment. As journalists, lawyers and campaigners we should understand the risks and the opportunities of social media. Surveillance was rife and applications like Signal and others were crucial. However, the opportunities for online campaigns to work were highlighted by #whereisIldarDadan. As a legal community, we could draw inspiration from the Council of Europe Recommendation on the Protection of Journalism and Journalists (2016), which recognises practical tools and legal standards for the preservation of free speech free from threat. The Recommendation crucially recognises that risk management must be both gendered and aware of the particular threats faced by the LGBT community. Lawyers could and should take concrete action by volunteering and getting involved, acting as trial observers, preparing amicus briefs, supporting local lawyers and taking cases both in international courts and tribunals and to the UN special mechanisms.
Questions from the floor ranged from the fight to secure open justice in the UK for the coverage of Russian deaths allegedly implicating Putin’s regime in the UK, from Litvinenko to Perepilichnyy, to the implications for global journalism of the implementation of the Investigatory Powers Act 2016 in the UK.
Rebecca Vincent, Director of the new London bureau of RSF, urged us all to think about the World Press Freedom Index. The rankings of both Russia and the United Kingdom had dropped. The threats to press freedom globally were on the rise. “Fake news” detractors may exclaim. The time for action and collaboration is now. She welcomed the work of Doughty Street Chambers and the establishment of the new Doughty Street International Media Defence Panel (and this Blog) and encouraged journalists and activists to use the law innovatively and as part of proactive campaigns to help ensure that journalists, bloggers and ordinary citizens in Russia enjoy the protection which both their own constitution and the international treaty framework guarantees.
As the seminar wound up, it did so to news on Twitter from Daniel Sandford at the BBC that Nikolai Gorokhov, the lawyer for Sergei Magnitsky’s family, had been reportedly “thrown from the 4th floor of his apartment building” in Moscow. One of the first replies was a plea from a follower, to Daniel, for him to “come home”. The breaking story was not only a heartbreaking and immediate reminder of the dangers faced by lawyers and reporters in Putin’s Russia, but a poignant call to action for all in the room.
Doughty Street Chambers has long been committed to supporting press freedom at home and abroad. The DSI Media Defence Panel consists of 15 international law media experts experienced in taking action to support journalists and media organisations at risk worldwide, including through bringing complaints to international courts and United Nations mechanisms.. The DSI Media Defence Blog, exists to provide updates about risks to journalists internationally.
Angela Patrick was instructed, together with Caoilfhionn Gallagher QC, for Guardian News & Media in Secretary of State v Her Majesty’s Coroner for Surrey & Ors  EWHC 3001 (on open justice in the Perepilichnyy inquest).
Read more about our work in and concerning Russia here