United Nations

Educational, Scientific and

Cultural Organization

Guidelines for Prosecutors

on Cases of Crimes Against
Journalists
 HIGHLIGHTS

1
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.

4
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.

5
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.

Xing Qu Cheol-Kyu Hwang

Assistant Director-General for President
Communication and Information a.i. International Association of Prosecutors
United Nations Educational, Scientific
and Cultural Organization

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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.

Freedom of expression is a fundamental human

right for every person enshrined and is globally
recognized as such. All people have the right to their The right is also expressed in the International
own opinions, and the right to seek, receive and share Covenant on Civil and Political Rights (ICCPR) under
information and ideas. For journalists, this right is the same broad terms as in the UDHR. They both
paramount to their essential professional duties to include the right not only to impart opinions and
seek out and share the truth. Without this freedom, ideas, but also to receive information.
it is impossible to interview citizens or request
information from public officials. This fundamental Regional instruments also guarantee the right to
right empowers people to share their opinions and freedom of thought and expression such as in the
ideas publicly. Without this right, one cannot impart American Convention on Human Rights (ACHR), the
reliable, accurate information to people so they can European Convention on Human Rights (ECHR) or
make informed decisions about their lives. And the African Charter on Human and Peoples Rights
ultimately, injustice and human rights abuses cannot (ACHPR). They all reaffirm the principles of the UDHR
be exposed. and ICCPR.

As stated in the Universal Declaration of Human

Rights (UDHR) under Article 19:

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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,

• put an end to the continuation of a serious offence,

As part of the opportunity principle analysis, the or
prosecutor must evaluate public interest, which
includes, among other factors: • prevent interference with witnesses or
obstruction of justice.
• maintaining public confidence in the
administration of justice,
In these circumstances, the file must be completed as
• weighing the effect of the decision on public order, soon as possible.

• 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

A source, who confidentially transmits information

to a journalist, with the latter’s commitment not
to disclose its identity and whose maintenance of
anonymity is essential to the relationship between
the journalist and the source, must be treated in the lifting of confidentiality. In its determination, it
accordance with the rules of confidentiality and public should be considered whether the public interest in
interest. The confidentiality of journalists’ sources the administration of justice outweighs the public
must be protected in the exercise of the mission of interest in preserving the confidentiality of the
informing the public. Consequently, journalistic journalistic source, considering in particular:
sources are confidential and should be treated as
such at every stage of the investigation and judicial • after having exhausted all other investigative
proceedings. grounds, the lifting of confidentiality proves
the only element of evidence available for the
The prosecutor must ensure the protection of resolution of a case,
confidential data that may lead to the identification • the consequences of the disclosure on the
of a source in situations where journalistic sources journalistic source and the journalist, and
could be revealed by means of investigation or during
the proceedings. • the impact on the freedom of the press.

Apart from highly exceptional circumstances,

journalistic sources or information which could lead This determination should be made or approved
to the identification of a journalistic source, should not by a senior managerial authority of the prosecution
be consulted or made public without the journalist’s service.
express consent, in agreement with the source, or
if this is not possible, by the media organization In any case, the journalist or the press organ
associated with the journalist, in agreement with the representing the journalist should be able to intervene
source. in the determination to assert their point of view.

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

a) Protection of Journalists in Investigative or Following a threat assessment by competent

Judicial Proceedings authorities, specific measures should be put in place.
These measures may include a financial assistance
In cases where the prosecutor’s jurisdiction includes programme, relocation, housing, change of identity,
witness protection programmes or victims and psychological assistance, close security, passive or
their family’s protection programmes, the following active security of the place of temporary or permanent
guidance should be applied. If the prosecutor has residence, and/or a procedure resettlement when the
the ability to recommend such action to competent threat is over.
authorities in the matter, they should be guided
by the same criteria for the purposes of their Except when authorized by law or in pursuit of a
recommendations. legitimate aim, the communication:

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,

• individuals associated with organized crime or should be prohibited.

terrorist organizations are linked to the alleged
commission of a crime against a journalist.

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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.

b) Justice’s collaborator2 • In accordance with domestic laws and practices,

submit to a polygraph test when the collaborating
The participation of citizens in investigations and witness has participated in a serious crime
the legal proceedings which may result from them, against a journalist with one or more accomplices
including the giving of testimony, is essential to the or in connection with a criminal organization or
proper functioning of the justice system. This moral a terrorist organization, and that it is envisaged
and social duty of citizens also applies to a person that the witness testifies against accomplices or
suspected or accused of a crime who decides, freely members of the organization to which the witness
and voluntarily, to testify against another person belongs or has belonged. This procedure should
being investigated or accused. also apply to a collaborator of justice witness when
they are qualified as an informant in custody (jail
In order to ensure the conduct of proceedings for house informant).
certain serious offences against a journalist, it may
be necessary to call in witnesses who are or have
been involved in these same criminal activities and Any question relating to a partial or complete
who request certain advantages in return for their immunity of the collaborating witness for a serious
testimony. crime against a journalist in exchange for testimony
against accomplices, a criminal organization or a
The decision to use collaborating witnesses must be terrorist organization involved in the serious crime
supported by evidence and based on the law, rules, against a journalist should be decided by the director
and procedure applicable to prosecutorial institutions of public prosecution or the correspondent authority
and respect for the values of Justice. For transparency of the prosecution service conducting the case.
and in the interest of justice, the benefits or
advantages granted to collaborating witnesses, with All immunities and benefits, financial or otherwise,
the exception for security measures, must be subject must be fully and transparently disclosed to parties
to the disclosure obligations of prosecutors. and to the public with exception for security measures.

To determine whether it is in the public interest c) Protection of witnesses during court

to grant a benefit(s) to a collaborating witness, the proceedings
following factors should be assessed:
During court proceedings, witnesses should have,
• a full and total recognition of the facts and actions upon request from the prosecutor and in accordance
carried out by the collaborating witness regarding with domestic laws and practices, the opportunity
the alleged crime and all other crimes to cleanse to give testimony outside the courtroom or behind a
the witness, screen or with other technological devices that would
allow the witness not to see or be seen by the accused
• a full commitment to collaborate in investigations when the hearing is likely to seriously endanger the life
where the testimony of the witness could be or physical integrity of that witness, family members
useful, and/or or relatives.

2
Council of Europe, Committee of Ministers, Recommendation No. R (97) 13, September
10 1997

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5
MUTUAL LEGAL ASSISTANCE IN
CRIMINAL MATTER AND EXTRADITION

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. In
the absence of formal MLA arrangements, countries
can rely on the principle of international and judicial
comity to assist each other in criminal matters. There
are practical steps prosecutors can take to make
international co-operation more effective.

Mutual legal assistance does not replace other modes

of cooperation. Collaboration between prosecutors
or police remains an important means of mutual
assistance, especially when the requested information
can be provided without the need for coercive • the transfer of detainees willing to testify or to
measures. assist in an investigation or pending proceedings,

• search and seizure, and/or

It is also possible to make requests for assistance
when there is no treaty between two countries under • the payment of criminal fines and the enforcement
the principle of international comity. These requests of confiscation orders.
take the form of a letter of rogatory which does not
derive its source from an agreement. The requested When the prosecutor prepares a request for mutual
state will respond to these letters in accordance with assistance based on a bilateral, multilateral treaty or
its domestic law. an international convention, they must pay particular
attention to the burden of proof required in the
When the sufficiency assessment depends on jurisdiction receiving the request. At this stage, having
evidence located abroad, the prosecutor shall ensure a proficient understanding of the distinctions between
that he can obtain that evidence in a manner that civil law and common law countries is essential when
ensures its admissibility. co-operation involves jurisdictions with different
systems. To complete a request, a prosecutor may
a) Request for mutual assistance have recourse to the assistance of a prosecutor in the
jurisdiction where the required evidence is found,
In general, mutual legal assistance treaties provide through the database available via the International
for five main mandatory mechanisms for mutual Association of Prosecutors (IAP) www.iap-association.
assistance: org. This may include police-to-police assistance or
aid through the central authority of its jurisdiction
• the gathering of evidence, including documents, which finalizes and officially transmits the request
affidavits, and testimony, to the central authority of the jurisdiction where the
required evidence is found when coercive measures
• the loan of evidence,
are required.

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 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

The issue of crimes against journalists is raised

globally, where the investigation and prosecution of
these crimes calls also for combating violence against
women journalists. Men and women journalists are
both exposed to violence and threats to their safety
during the performance of their duties. However,
women journalists are exposed to specific forms of
gender-based violence, including rape and sexual
harassment, and other forms of intimidation, including
threats. These guidelines provide the framework in
which a public interest decision should be made in the
context of gender-based crimes against journalists or
any other form of hate crimes.

When exercising their duties to charge a crime

against a female journalist, a prosecutor may proceed
with conducting a gender analysis by examining the
underlying power relationships and other dynamics
that determine whether discrimination was a factor
or motive in the commission of the crime. Such
analysis requires an understanding of differences in
status, power, roles, and the impact of hatred when The International Convention on the Elimination of All
weighing the evidence and examining the motive in Forms of Racial Discrimination (ICERD) expresses the
the commission of a crime. right to freedom of expression as the rights to freedom
of thought, conscience and religion and the freedom of
When determining an appropriate sentence, the opinion and expression. The States Parties undertake
prosecutor must consider factors such as the motive on to prohibit and to eliminate racial discrimination
the grounds of gender, which constitutes an aggravating as well, in all its forms, and to guarantee the right of
circumstance. Where permitted by national law, everyone to equality before the law, without distinction
the prosecutor will adduce evidence to propose to gender, sexual orientation, race, colour, religious
appropriate sentences for gender-based crimes, and beliefs, or national or ethnic origin. The prosecutor
for related harm, including physical, psychological, should also adduce evidence to propose appropriate
and social damage to victims, their families, and sentences for hate-based crimes for related harm,
communities. Sentence recommendations should including physical, and psychological damage to the
reflect the situation of female journalists and gender victim. Sentence recommendations should reflect the
dimensions of the crimes charged as an aggravating situation of hatred or gender as an aggravating factor.
factor.

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7
POST-CONFLICT
JURISDICTIONS
AND TRANSITIONAL
JUSTICE ISSUES

In the aftermath of a conflict or authoritarian rule,

transitional justice offers a range of processes and
mechanisms associated with a society’s attempt to
come to terms with a legacy of large-scale past abuses,
in order to ensure accountability, serve justice and
achieve reconciliation. Transitional justice consists
of both judicial and non-judicial processes and
mechanisms, including prosecution initiatives or
truth-seeking.

Protection of civilians in armed conflict emphasizes

the responsibility of states to comply with relevant
obligations under international law to end impunity
and to prosecute those responsible for serious
violations of international and domestic laws,
including crimes against journalists during conflict
and in transition toward a state of law. Prosecutors
in post-conflict jurisdictions should take appropriate
steps to ensure accountability for crimes committed
against journalists in situations of armed conflict to
bring perpetrators of such crimes to justice.

PROS ECU TION GU IDANC E I N CA SE S OF C RI ME S AGAI NST J OU RNAL I STS

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.

Dissemination of best practices including contextual

analysis, protection of journalists’ sources, witness
protections, collaborator of justice and gender
analysis are critical to maintain confidence in the
administration of justice. Prosecution services should
adopt all legally available provisions and mechanisms
to help prosecutors determine which offences to
charge and devote particular attention to identifying
discrimination and gender-based crimes against
journalists.

PROS ECU TION GU IDANC E I N CA SE S OF C RI ME S AGAI NST J OU RNAL I STS

15
 Multi-Donor Programme
on Freedom of Expression
and Safety of Journalists
United Nations
Educational, Scientific and
Cultural Organization

ABOUT THESE GUIDELINES

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).

ABOUT THE AUTHOR

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.

Cover photo: original photo by IAP redesigned by Marc James

Published in 2020 by the United Nations Educational, Scientific and Cultural Organization,7, place de
Fontenoy, 75352 Paris 07 SP, France ©UNESCO. This document is available in Open Access
under the Attribution ShareAlike 3.0 IGO (CC-BY-SA 3.0 IGO) License. By using the content of
this publication, the users accept to be bound by the terms of use of the UNESCO Open Access
Repository. The designations employed and the presentation of material throughout this publication
do not imply the expression of any opinion whatsoever on the part of UNESCO concerning the legal
status of any country, territory, city or area or of its authorities, or concerning the delimation of
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