Freedom of Association and Assembly / Protests
Vajnai v. Hungary
Closed Expands Expression
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The European Court of Human Rights found that the Russian Government had violated a journalist’s right to freedom of expression by arresting, prosecuting and sentencing him to administrative detention following his attempt to photograph a protest. The journalist, Maksim Butkevich, was arrested by the Russian police while covering a street protest during the 2006 G8 summit in St. Petersburg. He was subsequently sentenced to two days’ administrative detention, despite the fact that he had identified himself as a journalist to the police. The European Court of Human Rights found that the journalist’s rights to liberty and security, a fair trial, and freedom of expression had been violated by the Russian authorities and courts in this case. The European Court of Human Rights found that the arrest was not in accordance with Russian law. It also applied “strict scrutiny” to prosecution and conviction of the journalist, since they ensued his removal from the scene of a demonstration. In this regard, it found that the Russian authorities and courts had not given sufficient consideration to whether the journalistic function performed by Mr. Butkevich excused or mitigated his alleged actions, whether the demonstration threatened public order, and whether the measure adopted against Mr. Butkevich was proportionate.
This case concerned a journalist, Maksim Butkevich, who had been employed with a Ukrainian TV channel. In 2006, he had taken leave from his television assignments to volunteer to cover the G8 summit in St. Petersburg, Russia, for the Libertarian Information and News Collective.
In the morning of July 16, 2006, he was arrested by two police officers while covering an “anti-globalisation” march in St. Petersburg. According to the journalist, he was not taking part in the protest but was just taking photographs. He was not wearing anything that would indicate that he was a journalist. During the march, the police started to disperse the gathering and to arrest some of the participants. One of the police officers spotted him taking pictures and ordered him to switch off the camera. According to Mr. Butkevich, he complied with the order and he did not show any resistance to the police. Mr. Butkevich said that he had presented his press-card issued by the International Federation of Journalists and explained his presence at the venue. According to the Russian police, the journalist was ordered to cease his “unlawful actions” several times and he refused to comply with the orders. They alleged that they ordered him to follow them to the police vehicle in order to go to the police station, but he refused and behaved defiantly. He was then taken to the police vehicle by force.
At the police station, Mr. Butkevich was subject to administrative arrest, a record was drawn up for the arrest, and it contained no reasoning. According to the Government, he was in possession of an immigration card indicating a “private visit” to Moscow as the aim of his presence in Russia, and his case file contained no photocopies of any document confirming his status as a professional journalist.
Once he had access to the administrative-offence record, Mr. Butkevich observed that it said he had been arrested because of his “participation in a non-authorized demonstration in Neviskiy Avenue, thus creating a risk of accident threatening his own and others’ lives and limb”. [para.16]
Later on the same day as his arrest, a new administrative-offence record was compiled and signed by the journalist. It reported that the applicant was arrested because he had “disobeyed a lawful order from a police officer”. At around 8:30pm, the applicant was brought before a justice of the peace. He was accused of having disobeyed two orders from the police: (i) to cease his participation in the non-authorized demonstration and (ii) to get, “voluntarily,” into the police vehicle. [para.18] Before the Court, the journalist said that he was taking a walk with the friend he was visiting when he saw people marching with banners and posters. He then followed the protestors to take some photographs. The friend was heard as a witness by the justice of the peace, but the friend did not see the arrest itself. According to Mr. Butkevich, the Court refused to hear the two police officers responsible for arresting him. On that same evening, the justice of the peace convicted the journalist and sentenced him to three days of detention to be counted from 10:00am that day. The conviction was based on the amended administrative-offence record and the written statements made by the arresting officers prior to the trial.
The journalist immediately appealed the trial judgment. During the appellate hearing he was represented by an official from the Ukrainian Consulate. On July 18, 2006, the Kuybyshevskiy District Court of St Petersburg upheld the conviction but reduced the sentence to two days’ detention. The appeal court reasoned that the trial judge had given a proper assessment of the officers’ reports and testimony, and that there was no reason to doubt the officers’ reports. The decision was “subject to immediate enforcement,” but Mr. Butkevich alleged that he was not released for another six hours. The conviction was subsequently upheld by the City Court.
The journalist brought the case to the European Court of Human Rights, complaining that his arrest, detention and conviction violated his rights under Article 5 (right to liberty and security), Article 6 (right to fair trial) and Article 10 (right to freedom of expression) of the European Convention on Human Rights. In relation to his argument under Article 10 of the European Convention on Human Rights, Mr. Butkevich argued that the authorities consistently disregarded evidence confirming his status and functions as a journalist. He argued that, in doing so, the authorities disregarded their obligation to specifically protect journalists and their right to seek and receive information. Moreover, he argued that the freedom to cover matters of public interest could not be limited to accredited journalists and mainstream media. The Government primarily argued that Mr. Butkevich’s case did not disclose any interference with his right to freedom of expression since he had been arrested and prosecuted for failing to obey a lawful order.
The Media Legal Defence Initiative (MLDI), Article 19 and the Mass Media Defence Centre intervened as third parties in the case, arguing, among other things, that Article 10 of the European Convention of Human Rights should be interpreted in the light of the evolving national and international norms on press freedom and news gathering to ensure that journalists can carry out their essential watchdog function in an effective and real manner, particularly in the context of protests. They pointed out that under international standards, mandatory licensing or registration of journalists was incompatible with the right to freedom of expression. The Government of Ukraine also intervened as a third party, and highlighted the media’s crucial role in covering protests.
The European Court of Human Rights (Court) analyzed the case under Articles 5, 6 and 10 of the European Convention on Human Rights (Convention), and found violations in relation to all three rights.
In relation to Article 10 of the Convention, the Court began by considering whether there had been an interference with the right to freedom of expression. The Court noted that Mr. Butkevich attempted to take some photographs of the demonstration, thus collecting “information,” and that he intended to “impart” that information by way of processing the photographs for dissemination. Accordingly, the Court determined that the applicant’s arrest, detention and prosecution amounted to an interference with Article 10 of the Convention. In this context, the Court reiterated that the gathering of information was an “essential preparatory step in journalism and an inherent, protected part of press freedom.” [para. 123]
The Court then had to establish whether the interference was justified. In this regard, the Court clarified that it would “proceed to ascertain whether [the] lawfulness, legitimate aim and pressing social need justifying the “interference” were present throughout all the stages of it, namely the applicant’s removal from the venue of the demonstration, his retention in the police station and his sentence to administrative detention.” [para. 126]
On the question of “lawfulness,” the Court stated that it would not reach a conclusion as to whether the prosecution was “provided by law,” and it decided to look at these aspects when considering whether the interference was “necessary in a democratic society.” Nonetheless, it did find that the retention of Mr. Butkevich in the police station was not “provided by law” since his arrest was not made in compliance with Russian law (see below).
The Court went on to consider whether the prosecution pursued a “legitimate aim” and was “necessary in a democratic society.” The Court noted that the alleged disobedience of official orders took place in the context of a public event which was deemed unlawful as it had not been notified to the authorities in advance. In light of this, the Court accepted that the prosecution was aimed at preventing disorder.
The Court noted that it had to apply “strict scrutiny” to measures that ensue any attempt to remove journalists from the scene of demonstrations, such as prosecution for an alleged offence in relation to a demonstration. The Court stated that it had no reason to doubt that Mr. Butkevich, acting as a journalist, “intended to collect information and photographic material relating to the public event and to impart them to the public via means of mass communication.” [para. 131]. Therefore, Mr. Butkevich was entitled to rely on the protection afforded to the press under Article 10 of the Convention before the Court. In this connection, the Court held that the domestic authorities failed to adequately “delve into whether his alleged actions were excusable or otherwise mitigated, given his argument that he had been acting as a journalist.” [para. 133]
Furthermore, the Court found no relevant and sufficient reasons justifying the orders given by the police against Mr. Butkevich. There was no evidence that the demonstration had turned violent, and this aspect of the case had not been subjected to adequate scrutiny in the domestic proceedings. In this regard, the Court distinguished the present case from its judgment in Pentikäinen on the basis that the aim of preventing public disorder weighed heavily in the latter case.
The Court took note of the Government’s submissions that the unlawfulness of the demonstration did not directly influence the arrest and prosecution of Mr. Butkevich, and that his role as a journalist was taken into account by the appellate court. Nonetheless, the Court criticized the lack of any assessment as to the lawfulness of the event, particularly in so far as it was pertinent for assessing the lawfulness of the orders given to Mr. Butkevich by the police. The Court also criticized the domestic courts’ failure to assess the proportionality of the interference with Mr. Butkevich’s right to freedom of expression.
In light of the above, the Court was not satisfied that the reasons adduced by the national authorities to justify the interference with Article 10 of the Convention were relevant and sufficient to justify the imposition of a sentence of two days’ detention. Therefore, it could not find that the domestic courts had complied with the principles embodied in Article 10 of the Convention, or relied on an acceptable assessment of the relevant facts. The Court concluded that Mr. Butkevich’s arrest, detention and prosecution violated his right to freedom of expression under Article 10 of the Convention. The Court did not deem it necessary to consider whether the removal of the journalist from the venue of the demonstration amounted to a violation of Article 10 of the Convention.
The Court also found violations of Articles 5 and 6 of the Convention. In relation to Article 5 of the Convention, the Court held that Mr. Butkevich’s administrative arrest did not comply with Russian law. For instance, accordingly to Russian law, an administrative arrest could only be imposed in “exceptional circumstances” and/or where it is “necessary for the prompt and proper examination of the administrative case and to secure the enforcement of any penalty to be imposed”. The Government did not demonstrate how the arrest was justified under either of these headings. Therefore, the administrative arrest was not found to be “lawful” under Article 5(1)(c) of the Convention. The Court also found a violation of Article 5(1) of the Convention because of the six-hour delay in releasing Mr. Butkevich following the decision of the appellate court. The Court also found a violation of Article 6 of the Convention because of the lack of “objective impartiality” on the part of the courts due to the absence of a prosecuting party, and a lack of a fair trial due to the non-attendance of the arresting officers.
As for damages, the Court awarded 7,000 EUR in non-pecuniary damages to the journalist as compensation for the harm caused by the violations of Articles 5, 6 and 10 of the Convention.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision expands expression since the European Court of Human Rights (Court) considered that the arrest, prosecution and conviction of the journalist following his attendance at a protest had violated his right to freedom of expression under Article 10 of the European Convention on Human Rights (Convention). The case sets an important precedent on the protections that should be afforded to journalists observing and collecting information on public protests in order to disseminate such information to the public.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
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