Pentikainen v. Finland

The applicant (A) was a photographer and journalist who lived in Helsinki and worked for a weekly magazine. He was sent to take photographs of a demonstration at an international meeting which was held in Helsinki. The police had been warned that the demonstration would be hostile, and a separate area was reserved for the media to safely observe.

The demonstration did turn violent and its end was announced by the police, who decided it had become a riot and sealed off the demonstration area. Demonstrators were allowed to leave, however, a core group of 20 remained, including A and a former MP. Those remaining were asked to leave the scene, failing which they would be arrested. A asserted that he told police that he was a media representative and that he was wearing his press badge. He decided to stay at the demonstration and was then arrested and subsequently detained at a police station for 17 and a half hours.

Charges were brought against A for disobeying the police under Chapter 16, section 4, subsection 1, of the Penal Code. He was found guilty by the Helsinki District Court of disobeying the police, but the court imposed no penalty. He was found to have been aware of the orders to leave the scene but to have chosen to ignore them. Police witness statements suggested that A had not made clear his status as a journalist. The court balanced A’s Article 10 rights against other interests, finding that the interference with A’s rights had been prescribed by law, fulfilled a legitimate aim and had been necessary in a democratic society. A’s applications to the Court of Appeal and Supreme Court for leave to appeal were refused.

A alleged a violation of Article 10 of the Convention and his application was ruled admissible. A submitted that: the police were aware that he was a journalist at the time of his arrest; he had clearly been at the scene to practise his profession as a photographer; and that he had been doing his duty as a journalist, and that there had therefore been an interference with his Article 10 rights.

The Government submitted that: A had been arrested not for taking photographs but for refusing to leave the scene; he had swiftly been released and no restrictions had been place on his use of the photographs; the interference had been prescribed by law and had a legitimate aim; the arrest could not be regarded as disproportionate in the circumstances; and that the domestic authorities had applied the law in the light of Article 10.

Was A’s arrest and conviction for disobeying the police a violation of Article 10?

(1) Was there an interference with A’s Article 10 rights?

(2) Was it prescribed by law and did it pursue a legitimate aim?

(3) Was any interference necessary in a democratic society?

By a majority of five votes to two that there had been no violation of Article 10

(1) Since the applicant’s arrest and conviction were the consequence of his conduct as newspaper photographer and journalist when disobeying the police, the presumption is that there was an interference with his Article 10 rights.

(2) The measures taken against A had a basis in Finnish law and pursued several legitimate aims.

(3) The court noted the circumstances leading up to A’s arrest, holding that any interference with A’s exercise of his journalistic freedom was only of limited extent, given the opportunities made available to him to cover the event adequately. The conduct sanctioned by the criminal conviction was not his journalistic activity as such, but his refusal to comply with a police order at the very end of the demonstration, when it was judged by the police to have become a riot.

As to whether the “necessity” of the restriction of the exercise of the freedom of expression had been established convincingly, the Court examined the relevance and sufficiency of the reasons given by the domestic courts for convicting the applicant. There were public interest grounds for reporting the event, and an area reserved for the press. It had, however, been necessary to disperse the crowd because of the riot and the threat to public safety, and thus the restrictions on A’s Article 10 rights were justified.

The District Court had analysed the matter from the point of view of Article 10. A had been convicted of a crime but no penalty had been imposed as he had faced contradictory expectations from his police and his employer. As a result, A was not given a criminal record.

The domestic court’s reasons were relevant and sufficient for the purposes of Article 10. Taking into account the factors considered, and the margin of appreciation afforded to the State in this area, a fair balance between the competing interests was struck. The domestic courts were entitled to conclude that the interference was necessary in a democratic society.

The decision is a surprising one, since the arrest, detention and conviction of a journalist who is carrying out his professional duties is, on its face, a clear violation of his Article 10 rights. It relies heavily on a finding by the domestic court of A’s alleged failure to identify himself as a journalist immediately prior to arrest, and the same court’s assertion that it had considered A’s Article 10 rights. It also affords the Respondent state a very broad margin of appreciation.

The opinion of the two dissenting judges appears to take a more principled approach as it rightly points to the domestic court’s conflation of the necessity to quell the riot with the necessity for a police order to be obeyed by A irrespective of its rationale, an order which, moreover, ultimately had serious consequences for A.  They also refer to its cursory analysis of A’s Article 10 rights. Merely alluding to the balancing exercise, rather than carrying out with an intense scrutiny on the relevant rights, would generally be seen as inadequate in the courts of England and Wales.