Information Note on the Court’s case-law 189
October 2015
Pentikäinen v. Finland [GC] - 11882/10
Judgment 20.10.2015 [GC]
Article 10
Article 10-1
Freedom of expression
Arrest and conviction of journalist for not obeying police orders during a demonstration: no violation
Facts – In 2006 the applicant was sent to report on a demonstration in his capacity as a journalist and photographer. When the demonstration turned violent, the police decided to prevent the demonstrators from marching and to allow a peaceful demonstration to be held on the spot. They later sealed off the area and ordered the protesters to disperse. Despite being repeatedly asked to leave the scene, the applicant decided to remain with the demonstrators. Shortly afterwards he was arrested along with a number of demonstrators and detained for over 17 hours. He was subsequently found guilty of disobeying police orders but no penalty was imposed. That decision was upheld on appeal and the applicant’s subsequent complaint to the Supreme Court was rejected.
In a judgment of 4 February 2014 a Chamber of the Court held, by five votes to two, that there had been no violation of Article 10 (see Information Note 171). On 2 June 2014 the case was referred to the Grand Chamber at the applicant’s request.
Law – Article 10: When assessing the necessity of the interference with the applicant’s freedom of expression the Court had to weigh two competing interests: the interest of the public in receiving information on an issue of general interest and that of the police in maintaining public order in the context of a violent demonstration. In this connection, the Court stressed the “watchdog” role of the media in providing information on the authorities’ handling of public demonstrations and the containment of disorder. Any attempt to remove journalists from the scene of a demonstration had therefore to be subjected to strict scrutiny. On the other hand, the protection afforded by Article 10 to journalists was subject to the proviso that they act in conformity with the principles of responsible journalism. Accordingly, journalists exercising their freedom of expression undertook “duties and responsibilities” which meant that they could not claim immunity from criminal liability for the sole reason that the offence in question was committed during the performance of their journalistic functions.
As to the applicant’s arrest, the case file disclosed no reason to doubt that the police orders to disperse the demonstration were based on a reasonable assessment of the facts. Moreover, the preventive measures taken against the likelihood of the events turning violent appeared justified. They were directed not only at the “abstract” protection of public order but also at the safety of individuals at or in the vicinity of the demonstration, including members of the media and, therefore, the applicant himself. As to the applicant’s conduct, the Court first noted that his physical appearance during the demonstration did not clearly distinguish him from the protesters, as he was not wearing any distinctive clothing or other signs capable of identifying him as a journalist. It was thus likely that he was not readily identifiable as a journalist prior to his arrest. Had he wished to be acknowledged as a journalist by the police, he should have made sufficiently clear efforts to identify himself as such by wearing distinguishable clothing, keeping his press badge visible at all times or by any other appropriate means. As a journalist reporting on police actions, he had to have been aware of the legal consequences of disobeying police orders and so, by not doing so, had knowingly taken the risk of arrest. Furthermore, nothing in the case file suggested that the applicant would not have been able to continue to perform his professional duty in the immediate vicinity had he obeyed the order to leave the cordoned-off area.
As to the applicant’s detention, although he was held at the police station for seventeen and a half hours, because of his status as a journalist he was one of the first to be interrogated and released. Further, although it was not entirely clear how his camera equipment and memory cards were treated after his arrest, it did not appear that his equipment was confiscated at any point and he was allowed to keep all the photographs he had taken without any restrictions on their use.
As to the conviction, although the applicant was ultimately found guilty of contumacy towards the police no penalty was imposed. Any interference with his journalistic freedom had been of limited extent, given the opportunities he had had to cover the event adequately. The Court emphasised that the conduct sanctioned by the criminal conviction was not the applicant’s journalistic activity as such, but his refusal to comply with a police order at the very end of a demonstration which had been judged by the police to have become a riot. In this respect, the fact that the applicant was a journalist did not entitle him to preferential or different treatment in comparison to others at the scene. Indeed, the legislation of the majority of the Council of Europe member States did not confer any special status on journalists when they failed to comply with police orders to leave the scene of a demonstration. Furthermore, the concept of responsible journalism required that whenever journalists had to choose between the general duty to abide by the ordinary criminal law and their professional duty to obtain and disseminate information, and chose the second option, they had to be aware that they assumed the risk of being subject to legal sanctions, including those of a criminal character. Finally, no penalty was imposed on the applicant on the grounds that his act was considered “excusable”: as a journalist, he had been confronted with contradictory expectations arising from obligations imposed on him by the police, on the one hand, and by his employer, on the other. His conviction thus amounted only to a formal finding that he had committed the offence and as such could hardly, if at all, have any “chilling effect” on persons taking part in demonstrations. The applicant’s conviction could therefore be deemed proportionate to the legitimate aims pursued.
Conclusion: no violation (thirteen votes to four).
(See also Stoll v. Switzerland [GC], 69698/01, 10 December 2007, Information Note 103; Animal Defenders International v. the United Kingdom [GC], 48876/08, 22 April 2013, Information Note 162; and Morice v. France [GC], 29369/10, 23 April 2015, Information Note 184)
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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