Freedom of Association and Assembly / Protests, Press Freedom
Public Prosecutor v. Shwe Hmone (Myanmar)
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The European Court of Human Rights (ECtHR) held that Finland did not violate Article 10 of the European Convention on Human Rights (ECHR) when police arrested a photojournalist who ignored police orders to disperse during a violent demonstration. The court reasoned that “the authorities did not deliberately prevent or hinder the media from covering the demonstration in an attempt to conceal from public gaze the actions of the police with respect to the demonstration in general or to individual protesters,” but simply that “ interference with [the journalist’s] right to freedom of expression was ‘necessary in a democratic society’ and did not amount to a violation” of the ECHR.
The Asia-Europe Meeting (ASEM) is a biannual gathering of European and Asian leaders designed to foster cooperation and conversation between the 28 members of the European Union and the 10 members of the Association of Southeast Asian Nations. In recent years, additional countries that are not part of those political bodies have also been in attendance. In 2006, the eighth Summit of the ASEM was held in Helsinki, Finland.
As is common with many international trade meetings, thousands or, according to some estimates, tens of thousands of demonstrators descended upon the city to protest ASEM. Prior to both the summit and the massive demostration against it, journalist Pentikäinen was assigned by his supervisor at the Suomen Kuvalehti weekly magazine to make an extensive report of the protest.
Of particular importance to Pentikäinen was a massive protest entitled “Smash ASEM” that was scheduled for 6 p.m. on September 9, 2006. According to varying estimates, between 300 and 500 people gathered in front of the Art Museum Kiasma, where they were carefully monitored by approximately 200 police officers. According to the government of Finland, the police had set up a separate area for journalists and photographers to observe and document the protest. However, Pentikäinen chose not to be confined to this area and instead, he headed straight into the heart of the demonstration.
The confrontation between the police and the protestors quickly turned violent, as a variety of objects including rocks and bottles were thrown at the police. It was at this point that the Finnish police ordered everyone in the area to disperse or face arrest. While the police did conduct searches and checked the identification of those leaving the protest area, those who voluntarily left apparently did not face any legal consequences.
However, approximately 20 individuals, Pentikäinen remained within the police defense line. Upon refusal to leave, the police apprehended some demonstrators. After the police repeatedly called the remaining individuals within the cordoned-off area to leave, Pentikäinen called his employer who suggested that his presence inside the cordon was necessary. Towards the end of the demonstration, a police officer personally told Pentikäinen that he had one last chance to leave the scene. In response, he told the officer that he was a journalist and was going to follow the event to its end. As only 20 demonstrators remained seated on the ground, the police broke up the crowd and apprehended them, including Pentikäinen.
Pentikäinen allged that as he was being arrested, he told the apprehending officer that he was a journalist. But during a pre-trial investigation, the officer testified that he had not heard Pentikäinen identify himself as a journalist.
He was subsequently detained for approximately 17.5 hours in a police station before being released.
On May 23, 2007, Helsinki prosecutors charged Pentikäinen with disobeying a lawful order. On December 17, 2007, the Helsinki District Court found him guilty under Chapter 16(2)(1) of the Penal Code but refused to impose any penalty as the court found his offense comparable to “an excusable act.” The court held that the police orders applied to everyone still remaining in the cordoned-off area and that Pentikäinen was aware of the orders.
On January 23, 2008, Pentikäinen appealed the judgment to the Court of Appeal, which rejected the appeal without giving further reasons. On September 1, 2009, the Supreme Court of Finland refused to permit Pentikäinen leave to file his appeal.
On February, 19, 2010, Pentikäinen filed an application to the European Court of Human Rights, alleging that his arrest and conviction amounted to unlawful interference with his right to freedom of expression under Article 10 of the European Convention on Human Rights.
The main issue before the Chamber of the European Court of Human Rights was whether the arrest and conviction of Pentikäinen was a violation of Article 10 of the European Convention on Human Rights.
Under Article 10(1), “[e]veryone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.” But under paragraph 2, the right to freedom of expression “carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society . . .”
First, the Chamber found that Pentikäinen’s apprehension and subsequent conviction was an interference with his right to freedom of expression. But the Chamber concluded that such interference was “prescribed by law” and it pursued several legitimate grounds, such as protection of public safety and prevention of disorder and crime. [para. 63]
As to whether the interference was necessary in a democratic society within the meaning of Article 10 of the Convention, the Chamber noted that Pentikäinen refused to stay in a secured area designated for the press and instead, he decided to stand in the cordoned-off area with other demonstrators while being aware of the orders of the police to leave the area. Based on the available evidence, the Chamber also found that Pentikäinen had failed to make clear efforts to identify himself as a journalist prior to his arrest. It also considered the interest of public in free media, on one hand, and the pressing social need to take the impugned measures against refusal to obey a lawful order. The Chamber also took into account the fact that the domestic courts of Finland did not impose any penalty on Pentikäinen as his act was considered “excusable.”
In light of all the factors, the Chamber concluded that there was no violation of Article 10 of the Convention. Subsequently, Pentikäinen filed a request for his case to be considered by the Grand Chamber of the European Court of Human Rights.
Pentikäinen argued that his apprehension and conviction unlawfully amounted to a “chilling effect” on his right to freedom of expression. As to whether such interference was prescribed by law, he contended that the police’s categorical order for the crowd to disperse was disproportionate and therefore, not in accordance with the Finish law. He added that his detention was illegal because it lasted 17.5 hours, exceeding the 12-hour period for individuals not suspected of rioting. On the question of whether his arrest was necessary in a democratic society, Pentikäinen pointed out that his task was to impart information to the public about the demonstration and denied the government’s assertion that there was a secured area for the press on the day of protest. He also maintained that he could be clearly identified as a journalist between demonstrators because he stood between them and the police line while having a press badge around his neck and carrying two cameras that are only used by professional journalists.
In response, the government argued that there had not been an interference with his right to freedom of expression because the reason for the arrest was not due to his journalistic function, but the fact that he repeatedly failed to obey consistent and clear police orders to leave the area. In the alternative, the government of Finland contended that his arrest and conviction were necessary in a democratic society because the domestic courts struck a fair balance between the competing rights at stake, namely the right of public to receive information, and the right to protect public safety and maintain order. The government also noted that the underlying law was applied equally to Pentikäinen and demonstrators and he “was not entitled to preferential or different treatment in comparison to other members of the crowd present at the demonstration scene.” [para. 78]
The Grand Chamber delivered a majority judgment (thirteen votes to four). The court first addressed the question of whether Pentikäinen’s arrest and conviction amounted to an interference, and if yes, whether it was prescribed by law. It concluded that “[e]ven if the impugned measures were not aimed at the applicant as a journalist but were the consequence of his failure to comply with police orders to disperse, addressed to all those present in the cordoned-off area, his exercise of his journalistic functions had been adversely affected. . .” [para. 83] The Grand Chamber then held that such interference was prescribed by law because his arrest and conviction were made pursuant to Finish law, namely Section 19 of the Police Act.
As to whether the interference was necessary in a democratic society under Article 10 of the Convention, the Grand Chamber reiterated that the concept of “necessity” within the meaning of Article 10(2) implies “the existence of a ‘pressing social’ need. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court.” [para. 89] The Grand Chamber then noted the important role of media in imparting matters of serious public concern. It also emphasized the duty of journalists to act in good faith and in a professional manner, including the responsibility to act lawfully. For the Grand Chamber, “the fact that a journalist has breached the law in that connection is a most relevant, albeit not decisive, consideration when determining whether he or she has acted responsibly.” [para. 90]
As applied to this case, the Grand Chamber made it clear that the government measure here did not concern prohibition of a publication. Instead, it was about “measures taken against a journalist who failed to comply with police orders while taking photos in order to report on a demonstration that had turned violent.” [para. 94] It found it relevant that all other journalists except Pentikäinen had obeyed the police orders and left the area and that he had given the opportunity to leave without any consequences at any time. The Grand Chamber also considered that the police did not confiscate his camera equipments and memory cards during the demonstration, but only during the apprehension process in accordance with normal procedures.
Lastly, in order to assess the proportionality of the measures taken against Pentikäinen, the Grand Chamber noted that his arrest was made pursuant to a law and his conviction did not have adverse material consequences for him as no penalty was imposed and the conviction was not entered into his criminal record. It concluded that “the authorities did not deliberately prevent or hinder the media from covering the demonstration in an attempt to conceal from public gaze the actions of the police with respect to the demonstration in general or to individual protesters.” [para. 114] Accordingly, the Grand Chamber ruled that the interference with Pentikäine’s right to freedom of expression was “necessary in a democratic society” and did not amount to a violation of Article 10 of the European Convention on Human Rights.
Judge Spano joined by Juged Spielmann, Lemons and Dedov delivered the dissenting opinion.
At the outset, Judge Spano emphasized that for a government restriction on the press to be justified under Article 10 of the Convention, States parties bear the burden of showing that “a pressing social need justifying the interference remains present throughout all the stages during which the press is impeded in fulfilling its vital role under the Convention as the public’s ‘watchdog’.” [para. 1] Consistent with this principle, Judge Spano addressed the case under the Grand Chamber’s ruling in Stoll v. Switzerland, Application No. 69698/01 (2007), in which the majority applied a three-step criteria in its analysis of the government’s interference with the press. According to him, the majority in that case was of the opinion that “the mere fact that a journalist has acted in breach of a criminal-law provision is not the end of the matter for the purposes of the necessity and proportionality assessment.” [para. 5] To examine whether the conviction of the journalist in Stoll necessary, the Court further considered the following factors: “(1) the interests at stake; (2) the review of the measure by the domestic courts; (3) the conduct of the applicant; and (4) whether the penalty imposed was proportionate.” [para. 6]
(1) The interests at stake
Judge Spano was of the opinion that the ASEM demonstration was a significant event internationally and for Finish society. Particularly, the police interaction with demonstrators justified intrusive journalistic scrutiny, and when it proceeded to arrest the remaining demonstrators, it was crucial for the press to be able to observe the operational choices made by the police in order to secure transparency and accountability. As such, Judge Spano concluded that Pentikäine “should have been given ample latitude by the police to pursue his journalistic activity, taking due account of Article 10 of the Convention.” [para. 9]
(2) The review of the measures by the domestic courts
Judge Spano agreed with the majority that the police was initially justified in arresting Pentikäine at the end of the demonstration partly because he failed to display his press card and wear distinguishing clothing. However, he pointed out that the domestic courts failed to undertake a thorough analysis of whether there was a pressing social need to convict Pentikäine and whether it was necessary to detain him for 17 hours. Judge Spano also was of the opinion that the District Court’s judgment was inconsistent for the purposes of the necessity assessment under paragraph 2 of Article 10. According to him, “on the one hand, it was necessary to apprehend [him] for disobeying the police, but, on the other, it was nonetheless excusable for him to act in that way.” [para. 10]
(3) The conduct of the applicant
According to Judge Spano, the government of Finland failed to show a pressing social need to detain Pentikäine and confiscate his equipment after he informed the police of his journalistic status. As it was evident in the court records, at the time of his arrest, Pentikäine identified himself to the apprehending officer. Judge Spano held that even if the police was justified to arrest him for disobeying the order to disperse, the protection of Article 10 “does not stop there, as [he] was subsequently subjected to other restrictive measures.” [para. 12]
(4) Whether the penalty imposed was proportionate
In Judge Spano’s opinion, it was “overly simplistic and unconvincing” for the majority to conclude that the criminal prosecution and conviction of Pentikäine could not have any chilling effect on the work of the press at large. To the contrary, he warned that the majority’s view “will have a significant deterrent effect on journalistic activity in similar situations occurring regularly over the Europe.” [para. 12]
Based the foregoing analysis, Judge Spano held that the arrest and conviction of Pentikäine violated his right to freedom of expression under Article 10 of the Convention. He conclude by saying: “Today’s Grand Chamber judgment is a missed opportunity for the Court to reinforce, in line its consistent case-law, the special nature and importance of the press in providing transparency and accountability for the exercise of the governmental power . . .” [para. 14]
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision contracts the right to freedom of expression. However, such limitation can be justified based on the Grand Chamber’s analysis of whether the journalist’s arrest and conviction without any penalty imposed or adverse consequences on his criminal record were justifiable measures and therefore, necessary in a democratic society. On the other hand, as the dissenting opinion emphasized, the necessity of a government’s interference with the right to freedom of expression under Article 10(2) of the Convention should be present throughout all the stages of the restriction, including the period of detention and imposed penalty. Here, the dissenting opinion found that once the police was informed that the detained individual was acting in a journalist capacity, no pressing social need existed to detain him for more than 17 hours and confiscate his equipment.
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