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‘Abduction of Europa’ (Rembrandt Harmensz. van Rijn, Amsterdam - 1632 - fragment)

Friday, 7 February 2014

This week in Strasbourg - A roundup of the European Court of Human Rights' case law - 2014 week 6


"The criminal record Pentikäinen has received represents a further blow for freedom of the press in Finland, a country that, until recently, has had a superb press freedom record," said Johann P. Fritz, IPI Director. "In order to fulfil their role as public watchdog, the press need to be afforded certain rights. In the case of Pentikäinen, this right meant the permission to remain at the scene of the demonstration to continue reporting. Pentikäinen was not taking part in the demonstration, nor was he disrupting the peace. In fact, his witnessing of alleged police brutality proves that his continued presence was justified, and the fact that his arrest could be construed as pre-emptive censorship is truly worrying." International Press Institute (IPI)
No violation of Article 10 (freedom of expression) - In the case of Pentikäinen v. Finland the Court held, by a majority, that a photographer’s conviction of disobeying the police while covering a demonstration did not breach his freedom of expression. The case concerned the arrest of a media photographer during a demonstration and his subsequent conviction for disobeying the police. The Court underlined in particular that Mr Pentikäinen had not been arrested for acting as a photographer but for refusing to obey police orders to leave the scene of the demonstration. His equipment had not been confiscated and he had not been sanctioned.
“Whether the interference was necessary in a democratic society (-)
42.  Turning to the facts of the present case, the Court notes that the applicant was arrested, charged and found guilty of having disobeyed the police. His arrest took place in the context of a demonstration in which he had participated as a photographer and journalist. A separate, secure area had been reserved for the press but the applicant chose not to use it, preferring to stay among the demonstrators.
43.  The Court notes that it does not appear that the applicant was in any way prevented from taking photographs of the demonstration. As the Government pointed out, his camera or other equipment was not confiscated and he was allowed to keep all the photographs he had taken and to use them unrestrictedly.
44.  The Court further notes that when the demonstration turned violent, the police sealed the demonstration area and ordered the demonstrators to disperse. The domestic courts found subsequently that the police had had justifiable reasons to take these measures. Since these legal and legitimate orders were not obeyed, the police were entitled to arrest and detain the disobedient demonstrators. The Court also notes that the police allowed the media to move outside the police line. Two other photographers, who were in the sealed-off area, left the scene and no measures were imposed on them at any point.
45.  The Court observes that the applicant had waived his right to use the separated, secured area for the press when he had decided to stay among the demonstrators also after the orders to disperse. The District Court found it established that the applicant had been aware of the orders of the police to leave the scene but had decided to ignore them. The applicant could have left the scene and moved to the secured press area without any consequences at any time while the sealing-off lasted. The applicant has not even claimed that he could not have carried out his professional duties from the secured press area. By not doing so, the applicant knowingly took the risk of being arrested for contumacy.(-)
50.  In order to assess whether the “necessity” of the restriction of the exercise of the freedom of expression has been established convincingly, the Court must examine the issue essentially from the standpoint of the relevance and sufficiency of the reasons given by the domestic courts for convicting the applicant. The Court must determine whether the applicant’s conviction struck a fair balance between the public and private interests involved and whether the standards applied were in conformity with the principles embodied in Article 10 (see Nikula v. Finland, no. 31611/96, § 44, ECHR 2002 II).
51.  The Court considers that the demonstration was a matter of legitimate public interest, having regard in particular to its nature. From the point of view of the general public’s right to receive information about matters of public interest, and thus from the standpoint of the press, there were justified grounds for reporting the event to the public. This was also acknowledged by the authorities and therefore a separate, secure area had been reserved for the press. The event attracted a lot of media attention and was closely followed. The Court notes that the applicant was the only journalist claiming that his freedom of expression had been violated in the context of the demonstration.
52.  The Court observes that the domestic courts found it established that the applicant had understood that the police orders to disperse also concerned him and that he had failed to obey these orders. The District Court found, by referring to Article 10 of the Convention, that the police orders interfered with the applicant’s right to exercise his freedom of expression but that interference was prescribed by law and pursued a legitimate aim. As to the necessity, the court found that it had been necessary to disperse the crowd because of the riot and the threat to the public safety, and to order people to leave. Thus the restrictions on the applicant’s freedom of expression were justified. (-)
55.  In conclusion, in the Court’s opinion the reasons relied on by the domestic courts were relevant and sufficient for the purposes of Article 10 of the Convention. Having regard to all the foregoing factors and taking into account the margin of appreciation afforded to the State in this area, the Court considers that the domestic courts struck a fair balance between the competing interests at stake. In sum, the Court concludes that the domestic courts were entitled to decide that the interference complained of was “necessary in a democratic society”.
56.  Accordingly, there has been no violation of Article 10 of the Convention.
 DISSENTING OPINION OF JUDGE NICOLAOU JOINED BY JUDGE DE GAETANO
“It seems to me that it was only natural that the situation, as it developed, would heighten journalistic interest. There was nothing improper about that. Where a demonstration is peaceful, the journalist’s function is essentially one of collecting and transmitting information and, quite often, adding comment. But when tension builds up and violence breaks out, whereupon the authorities resort to suppressive control measures, the journalist assumes the role of “public watchdog” and his task then acquires even greater significance: as to this role of the press, see, for example, Barthold v. Germany, 25 March 1985, Series A no. 90. He is entitled to be in the very thick of things until the very end, and sometimes does so at considerable risk to himself. The reason is because in a democratic society the public have the right to know what happens during such difficult times. This right forms one of the basic safeguards of democracy. Hardly a day passes by when we are not made aware, in one way or another, of the need for journalistic freedom to perform that kind of role. The domestic court’s view that the applicant was inevitably faced with a dilemma as to where his loyalty lay, and that this dilemma could only be resolved by giving precedence to the law, quite misses the point. It does not, in my respectful view, reflect the true nature of the situation in which the applicant found himself. He was not one of the demonstrators. He was a journalist-photographer covering what the Government themselves have described as an event of considerable public importance.”
 

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