Freedom of Association and Assembly / Protests, Press Freedom
Pentikäinen v. Finland
Closed Expands Expression
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The European Court of Human Rights held that the forcible removal of journalists from the gallery of the Parliament of Macedonia was a violation of the right to freedom of expression under Article 10 of the European Convention on Human Rights. On December 24, 2012, the security service of the Macedonian Parliament forcibly removed journalists from the gallery when the parliamentary debate on the country’s annual budget became severely disrupted by some politicians in the Chamber below. Drawing on its precedent, the European Court emphasized that any attempt to remove journalists from places of public disorder, demonstration, or even disturbance in parliament would be subject to “strict scrutiny” given the “public watchdog” role of the media. The Court reasoned that, in the present case, there was no indication that the disorderly behaviour of the Macedonian lawmakers was violent or likely to put the journalists’ lives in danger. The European Court found that the Government of Macedonia had failed to demonstrate that the removal was “necessary in a democratic society”.
On December 24, 2012, the Parliament of Macedonia held a plenary session concerning the Budget Act of 2013. A number of journalists reported the debate from the Parliament gallery, which was located above the Chamber of the Parliament where the lawmakers were seated. This debate had attracted considerable public and media attention because of the conflict between opposition and ruling party members as to whether the statutory procedures had been complied with in approving the state budget. Protesters had also gathered outside the Parliament in opposition to the approval of the budget.
During the debate, members of the opposition approached the Speaker of Parliament (Speaker) and interrupted the session by slapping their hands on the Speaker’s table. Thereafter, security officers entered the Chamber and began removing the opposition members and the Speaker. Other security officers entered the gallery and ordered the journalists to leave the gallery. Several journalists resisted the order at first, as they felt that the public had the right to be informed of the escalating situation. The journalists were eventually forcibly removed.The journalists were told that they could follow the events via a live broadcast in the Parliament’s press room in an adjacent hall, or on the Parliament’s website and dedicated TV channel.
Six of the journalists lodged a complaint with the Constitutional Court of Macedonia, in which they alleged a violation of their rights under Article 10 of the European Convention on Human Rights. They argued that the parliamentary debates and the disruption to proceedings were matters of public interest. They also argued that the intervention of law enforcement with their duty to report was not “lawful” and was not “necessary in a democratic society.”
In April 2014, the Constitutional Court held a hearing without the presence of the six journalists and dismissed their complaint. While it held that the removal of the journalists amounted to an interference with the journalists’ right to freedom of expression, the action was justified due to the safety concerns at the time. In regard to whether the removal was “lawful”, the Constitutional Court reasoned that section 43 of the Parliament Act and the Rules of Parliament gave the Speaker authority to take measures to maintain order in Parliament (including the exclusion of individuals). They also noted that because the six journalists and other media representatives were later allowed to report from the Parliamentary press room, it was unlikely that the government had the intention of preventing them from reporting the debate.
Subsequently, the six journalists lodged an application with the European Court of Human Rights, in which they alleged violations of Articles 6 (right to a fair trial) and 10 (freedom of expression) of the European Convention on Human Rights.
The European Court of Human Rights (Court) unanimously found that the Macedonian Government had violated the six journalists’ (Applicants) rights under Articles 6 and 10 of the European Convention.
The Court first considered whether the lack of an oral hearing before the Constitutional Court amounted to a violation of the right to a fair trial under Article 6 of the Convention. The Court emphasized that “in proceedings before a court of first and only instance, the right to a ‘public hearing’ entails an entitlement to an ‘oral hearing’ under Article 6(1) unless there are exceptional circumstances that justify dispensing with such a hearing.” [para. 37] The Court noted that the domestic law stated that, as a rule, constitutional complaints were to be decided at a public hearing in the presence of both parties (Article 55 of the Rules of the Constitutional Court). The Court also observed that the Constitutional Court was the first and only judicial body to adjudicate the complaint, and therefore acted as a court of first (and only) instance. The Court further found that the Constitutional Court made findings on issues of fact and law, which were contested by the Applicants. Therefore, the Applicants were entitled to an oral hearing and the Court held that the lack of such a hearing was a violation of Article 6 of the Convention.
The Court then went on to consider whether the removal of the Applicants amounted to a violation of the right to freedom of expression.
The parties agreed that there had been an interference with the right under Article 10 of the Convention. The Court then considered whether the removal was “prescribed by law”, which required that the measure be made pursuant to a law and that the relevant law be drafted so an individual could foresee the consequences of breaching that law. In the present case, the Court acknowledged that section 43 of the Parliament Act did not contain explicit provisions entitling security officers to remove accredited journalists from the Parliament gallery, but concluded that it was not unreasonable that such a power was read into the provision by the Constitutional Court. Accordingly, the Court concluded that the removal met the requirement of being “prescribed by law”. It was also satisfied that the interference pursued the legitimate aims of ensuring public safety and the prevention of disorder.
As to whether the removal was “necessary in a democratic society”, the Court began by noting that the debate about the state budget had been a matter of public interest. The Court also acknowledged the authority of the Parliament of Macedonia to react when lawmakers engage in disorderly conduct that disrupts the normal functioning of the legislature. At the same time, the Court held that the disturbance in Parliament and the way in which the authorities handled it were “matters of legitimate public interest” and, therefore, the media had “the task of imparting information on the event, and the public had the right to receive such information.” [para. 75]
The Court further reiterated the vital role of the media as a “watchdog”, particularly in circumstances where authorities attempt to contain disorder. The Court noted that the presence of the media ensures that “authorities can be held to account for their conduct vis-à-vis the demonstrators and the public at large when it comes to the policing of large gatherings, including the methods used to control or disperse protesters or to preserve public order.” [para. 75] As such, the Court held that any attempt to remove journalists from the scene of public disorder or demonstrations should be subject to “strict scrutiny”, even more so when they are reporting the disorderly conduct of lawmakers. [para. 75] This level of scrutiny, according to the Court, required the examination of (i) whether the removal was based on a reasonable assessment of the facts, (ii) whether the applicants were able to report the incident, and (iii) the applicants conduct.
In the present case, the Court did not view the disorderly conduct in the Parliament as sufficient to justify the removal of the journalists from the gallery, particularly because there was no indication that the behavior of the opposition lawmakers would have put the Applicants’ lives and physical integrity in danger. While there was some evidence that physical objects were thrown into to the Chamber, the Court noted the government’s failure to provide explanation as to the type or number of objects thrown and whether any of them had reached the gallery. Furthermore, there was no evidence that the journalists’ posed a threat to public safety, order in the Chamber or otherwise. The Court observed, instead, that they were passive bystanders. Also, notwithstanding the conflicting accounts as to whether the Applicants were able to effectively report the events unfolding in the Chamber subsequent to their removal, the Court ruled that the removal of the Applicants and other media representatives entailed “immediate adverse effects that instantaneously prevented them from obtaining first-hand and direct knowledge based on their personal experience of the events unfolding in the Chamber.” [para. 84] Consequently, the removal of the journalists was not “necessary in a democratic society”
Based on the foregoing reasons, the Court found a violation of Articles 6 and 10 of the Convention.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This decision expands expression by recognizing that the removal of journalists from parliament can amount to a violation of the right to freedom of expression, particularly where the journalists are passive bystanders and observers to the disruptive activity of other individuals in parliament. The judgment highlights the need for strong evidence of a threat to either the journalists’ or the public’s safety to justify the removal of journalists from a press gallery. In the judgment, the Court highlights the vital role the press play in observing and reporting on how the authorities handle public disorder. This decision compliments other international (e.g. Gauthier v. Canada) and domestic (e.g. Primedia Broadcasting v. Speaker of the National Assembly) judgments recognizing the importance of safeguarding the media’s ability to report on parliamentary proceedings.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
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