"Journalists are ... essential to democracy by helping to ensure transparency and accountability in the conduct of public affairs and other matters of public interest," said Navi Pillay, the UN High Commissioner for Human Rights, at the conference organized by the Organization for Security and Co-operation in Europe (OSCE) on July 3-4, 2014. Human rights violations often target journalists precisely because of the special role they play in society.

Unfortunately, freedom of the press in OSCE states is restricted in numerous ways - from the torture of journalists in prisons in Belarus to the restrictive regulation of blogging in Russia.

Still, there is no need to put journalists behind bars to restrict the freedom of expression in any given state - recently, new technologies have been employed more and more often for this particular purpose. "Wiretapping journalists is one of the most effective ways to deter the exercise of freedom of expression," said Monroe Price, a professor of communication studies at the University of Pennsylvania, in his commentary to the Human Rights Monitoring Institute.

Wiretapping journalists as a means to restrict the freedom of expression

In June, it came to light that, during a particular pre-trial investigation, Lithuanian secret services had wiretapped 17 "Baltijos Naujienų Tarnybos" (Baltic News Service, or BNS) journalists. The aim of the wiretapping was to discover the source of a leaked government report on Russia, which BNS had publicized in one of its stories.

Bearing in mind that what took place was the mass surveillance of journalists, this news raises some unavoidable questions: do investigations pay any heed to the special status of journalists and their information sources? Do law enforcement agencies only resort to secret coercive measures in extreme cases? Are the courts exercising effective procedural control and ensuring that the standards of human rights protection are adhered to?

These questions are answered at least in part by how the officers who permitted and participated in the surveillance of journalists reacted to this story.

The characteristics of journalism and the protection of journalistic sources

The prosecutor in charge of the pre-trial investigation stated that "[...] the selection sought out persons who, once the pre-trial investigation had begun, could receive information that was important to the proceedings - in this instance, 17 persons that were either employed by or had some other connection to BNS UAB were selected. [...] if this list included 17 prosecutors, then we would have wiretapped 17 prosecutors to the same effect. I would like to stress that the application of procedural coercive measures has nothing to do with professions."

In fact, if we're looking at it from the perspective of human rights protection, the difference between professions is very important. In the case of Goodwin v. United Kingdom - more than 18 years ago - the European Court of Human Rights (ECtHR) ruled that the "protection of journalistic sources is one of the basic conditions for press freedom" and may only be ignored in exceptional circumstances. The decision also explained why it enjoyed special status: without such protection, sources may be deterred from assisting the press in informing the public on matters of public interest. As a result, this would prevent the press from carrying out its vital function - providing accurate and reliable information.

As such, with regard to both this particular case and to journalism in general, it is impossible to ignore the part that the profession plays in safeguarding democracy. Accordingly, whenever state law enforcement agencies attempt to curtail this right, the ECtHR always reminds them in its rulings that protection of journalistic sources is the cornerstone of the freedom of the press (for example, in the case of Sanoma Uitgevers B. V. v. the Netherlands).

Lithuanian courts are reluctant to consider human rights standards

Unfortunately, the arguments of the ECtHR are sometimes ignored not only by law enforcement officers, but also by Lithuanian judges - who are obliged to act in accordance with the decisions of the former court. When asked about her decision, the judge that sanctioned the use of wiretapping outside working hours said that "[t]he law contains no exceptions for prohibiting the use of such measures against journalists." She also added that "procedural action taken outside of working hours is not exceptionally complicated and does not require special skills or preparation."

Formally, the judge isn't wrong: the Criminal Code does not contain precise instructions for determining which persons may be wiretapped and, if so, in which particular circumstances (the only exception being the prohibition of tapping conversations between a suspect and his or her legal counsel).

On the one hand, this may be seen as a flaw in the law: it only provides for very limited protection of journalistic sources - it simply allows journalists to not disclose their sources when giving evidence. At the same time, journalists receive no additional protection when procedural action is taken to disclose these very same sources, such as the seizure of documents or assets, raids on premises or secret surveillance by way of wiretapping. As such, this is a shortcoming that can and should be removed.

On the other hand, the fact that the law is not comprehensive is in itself a poor excuse: an act of law cannot hope to regulate every imaginable situation and this is precisely why judges are given the discretion to make decisions in consideration of all the circumstances - and their deliberations cannot exclude the international human rights standards set by the ECtHR.

The view expressed by the judge - that making a decision on the use of coercive measures for law enforcement is not a complicated matter - is dangerous. When deliberating on whether to restrict fundamental human rights, in light of the need to ensure public safety, no decision is ever simple or can be made lightly, rubber stamping applications simply because the legal code does not expressly prohibit it. What is written - or what is omitted - in a single article of an act of law cannot become the sole consideration of judges if they are to be responsible for ensuring that the state does not abuse its power against the individual or society.

This article was written by Karolis Liutkevičius, a legal officer for HRMI, and published in Delfi.lt, a news portal.