EIT: Suomen Kuvalehden toimittajan sananvapautta ei loukattu; äänestys 5-2

Euroopan ihmisoikeustuomioistuin (EIT) on tänään antamassaan tuomiossa katsonut, että Suomen Kuvalehden toimittajan sananvapautta ei loukattu, vaikka hänet pidätettiin Smash ASEM-tapahtuman yhteydessä.

Ulkoministeriön lehdistötiedotteesta:

Tapauksessa oli kyse valittajana olleen Suomen Kuvalehden valokuvaajan
ja toimittajan pidättämisestä vuoden 2006 ASEM-kokousta vastustaneen
mielenosoituksen yhteydessä, sekä valittajan tähän liittyvästä
tuomitsemisesta niskoittelusta poliisia vastaan. Valittaja jätettiin
rangaistukseen tuomitsematta. Valittaja katsoi EIS 10 artiklassa
turvattua oikeuttaan sananvapauteen loukatun, kun häntä oli näin estetty
tekemästään työtään toimittajana.

EIT katsoi, että valittajan sananvapauteen oli puututtu. EIT totesi
kuitenkin, että puuttuminen oli ollut vain rajallista ottaen huomioon hänelle tarjotut mahdollisuudet raportoida tapahtumasta riittävästi. EIT
kiinnitti huomiota erityisesti siihen, että valittajalle oli tarjottu mahdollisuus seurata tapahtumia lehdistölle varatulta turvatulta
alueelta. EIT:n mukaan valittaja oli luopunut oikeudestaan käyttää tätä aluetta päättäessään jäädä mielenosoittajien joukkoon poliisien
oikeutettujen käskyjen vastaisesti ja ottanut tietoisen riskin tulla pidätetyksi. EIT totesikin, että valittajaa ei ollut estetty ottamasta
kuvia ja raportoimasta tapahtumasta, vaan että hänen pidättämisensä ja tuomitsemisensa liittyivät ainoastaan niskoitteluun poliisia vastaan.

EIT katsoi lisäksi, että puuttumisesta oli säädetty lailla ja että
sillä oli ollut oikeutettu tavoite, yleisen turvallisuuden takaaminen
sekä epäjärjestyksen ja rikollisuuden estäminen. EIT:n mukaan syyt,
joihin sananvapauteen puuttumiseksi oli vedottu, olivat merkityksellisiä
ja riittäviä osoittamaan, että puuttuminen oli ollut välttämätöntä. EIT
kiinnitti huomiota kansallisissa tuomioistuimissa tehtyyn tapausta koskevaan arviointiin ja katsoi, että asiassa suoritetussa harkinnassa
oli saavutettu kohtuullinen tasapaino eri intressien kesken. EIT huomioi
myös erityisesti sen, että valittaja oli jätetty asiassa rangaistukseen
tuomitsematta, sillä tekoa oli pidetty anteeksiannettavaan tekoon
rinnastettavana, kun valittajalla oli ollut käsillä toisaalta poliisin
ja toisaalta työnantajansa keskenään ristiriitaiset odotukset. Tuomiosta
ei myöskään tullut merkintää rikosrekisteriin.

Tuomari Nicolaoun eriävä mielipide, mihin mielipiteeseen tuomari De Gaetano yhtyi, kuuluu seuraavasti:

At the time of the applicant’s arrest, on the evening of 9 September 2008, he was on duty as a journalist-photographer working for a weekly magazine. He had been assigned the task of covering a demonstration, held in Helsinki, against the Asia-Europe meeting (ASEM). It was a political demonstration with economic undertones and, by Finnish standards, an exceptionally large one. The Government themselves described it “as an event of considerable public importance”. There was, unsurprisingly, strong media interest. The authorities, expecting such interest, made provision for a separate area from which journalists might follow events and take whatever photographs they could. That area would, presumably, afford them some safety and comfort, especially if it proved necessary for the police to take unpleasant suppressive measures. The measure would not have been regarded as one meant to keep journalists at bay so that, while they would have a fair view of general developments, they would not be able to spot or adequately distinguish incidents occurring anywhere in the middle of the demonstration or at the far end. Instead, one might reasonably have thought that the use of the area was optional and that a journalist had freedom to move around and mingle with demonstrators in order to get a better understanding of events, to obtain statements from participants and – in the case of a photographer – to take close-ups, which sometimes speak volumes. As it turned out, journalists were denied this freedom.

According to prior intelligence, there was a risk of the demonstration turning violent, and unfortunately it did. The demonstration started at 6 p.m. and, after half an hour, the police considered that it had become a riot. They took measures to suppress it. Initially, for about forty-five minutes, no one was allowed to leave save for a few individuals. Then, in furtherance of an order to disperse, the police created exit routes through which people could go on condition of showing an identity card and having their belongings checked. Shortly after 9 p.m. only some twenty persons remained at the scene. The police called on them to leave and warned them that unless they did so they would be arrested. The applicant was among them, still covering the event. There is no indication that there was, at that stage, a threat to public order; the riot had already been quelled. That is not to say, of course, that the police orders ceased to have relevance as regards the demonstrators. But the applicant was not one of them. And it has never been suggested that he did anything inconsistent with his journalistic duties.

The applicant says that he did not expect that the order would apply to him as well. At that stage he spoke about the matter with a colleague over the phone and asked for advice on whether he should leave or stay. He decided to stay so as to cover the situation until it was completely resolved. He was then arrested together with the others. He claims that he was wearing his press badge and had made his identity known. According to the Government, he had not revealed his identity to the arresting officer but, when taken to the police bus, he showed both his ID and his press badge. However, that made no difference at all.

Section 4(1) of Chapter 16 of the Penal Code (as amended) provides that the police may issue an order “for the maintenance of public order or security or the performance of a duty” and that to disobey would constitute “contumacy towards the police”, a criminal offence punishable by a fine or by imprisonment for up to three months. In the present case the order, issued orally by the police, could also have been orally revoked or varied, according to what the circumstances might have required. The object of the order was to restore peace by dispersing the crowd in a controlled way. It is surprising that it should have been thought that it could also apply to a journalist who was lawfully present and covering the event in the context of his media duties and that it could lead to his arrest.

The criminal court before which the applicant, jointly with many others, was charged under the aforesaid provision simply found that he had been aware of police orders; that they had been clear and had covered everyone, including him; and that he had decided not to comply. The domestic court, having briefly considered Article 10 of the Convention, found that there had been an interference with the applicant’s right to freedom of expression; that the interference had a lawful basis and pursued a legitimate aim, namely, preventing disorder; and that the interference had been necessary for the purpose of putting an end to a violent situation. Still, it may be noted that the situation had already been effectively dealt with by the time the applicant was arrested. The court found the applicant guilty as charged. However, it did not impose a sentence. It regarded the offence as excusable because it considered that the applicant, as a journalist, must have faced a dilemma between his duty to his employer and the obligation imposed on him by the police order. Consequently, by law, the conviction was not to be entered on the applicant’s criminal record.

Thus, the applicant was first required to obey the police order and then, when he failed to do so, he had to be arrested and kept in detention for seventeen and a half hours. It is to be noted that the domestic court never said that the arrest and detention were wrong or unnecessary. Subsequently, the applicant had to be prosecuted and to stand trial, and to be convicted of a criminal offence. In the domestic court’s view, all of that had been right and proper and well deserved, but on the other hand, the applicant would suffer no further consequences because the offence was excusable. The majority are content with that conclusion.

The applicant brought an appeal, complaining, inter alia, that the trial court had not given reasons why his arrest and conviction were “necessary in a democratic society”. He was obviously right in what he indicated. But his appeal was rejected, without the Court of Appeal itself giving reasons. The Supreme Court refused leave for a further appeal. It is not known why.

It seems to me that it was only natural that the situation, as it developed, would heighten journalistic interest. There was nothing improper about that. Where a demonstration is peaceful, the journalist’s function is essentially one of collecting and transmitting information and, quite often, adding comment. But when tension builds up and violence breaks out, whereupon the authorities resort to suppressive control measures, the journalist assumes the role of “public watchdog” and his task then acquires even greater significance: as to this role of the press, see, for example, Barthold v. Germany, 25 March 1985, Series A no. 90. He is entitled to be in the very thick of things until the very end, and sometimes does so at considerable risk to himself. The reason is because in a democratic society the public have the right to know what happens during such difficult times. This right forms one of the basic safeguards of democracy. Hardly a day passes by when we are not made aware, in one way or another, of the need for journalistic freedom to perform that kind of role. The domestic court’s view that the applicant was inevitably faced with a dilemma as to where his loyalty lay, and that this dilemma could only be resolved by giving precedence to the law, quite misses the point. It does not, in my respectful view, reflect the true nature of the situation in which the applicant found himself. He was not one of the demonstrators. He was a journalist-photographer covering what the Government themselves have described as an event of considerable public importance.

How could the police fail to realise the capacity in which the applicant was present at the scene, particularly at a stage when he was with a very small remaining group? As to whether he was wearing his media badge and whether he made his identity known to the police in good time, I have already referred to the controversy on this point. The domestic court made no finding on the matter. But, as I have noted, it was accepted that his identity was established before he was put on the police bus to the police station; and, further, one might ask whether the applicant, while locked up, had not asserted his identity and remonstrated about spending the night in a cell. There is a nagging question and it is this: Did the police really care whether the applicant was a journalist or not? The fact that he was prosecuted tends to suggest that they did not. It may also be added that if the police or the courts were to have taken the view that the applicant’s prosecution should have been disconnected from his arrest and detention, they would have been expected to look at these aspects separately and to give relevant explanations. But they did not.

The majority take the view, in line with the Government’s position, that “the fact that the applicant was a journalist did not give him a greater right to stay at the scene than the other people” (see paragraph 47 of the judgment). This aspect is seen as connected with the question of necessity. The majority say (paragraph 44) that: “Since these legal and legitimate orders were not obeyed, the police were entitled to arrest and detain the disobedient demonstrators”. But the applicant was not a demonstrator and no one has ever suggested that he was. The majority seem to be saying that since the applicant chose “to stay among the demonstrators” and not to use the area reserved for the press he should accept the same fate (see paragraphs 42 and 45). Again, referring to the question of necessity, the majority say (see paragraph 52) that: “As to the necessity, the court found that it had been necessary to disperse the crowd because of the riot and the threat to the public safety, and to order people to leave. Thus the restrictions on the applicant’s freedom of expression were justified”.

I would respectfully observe that the majority conflate the meaning of the undoubted necessity to quell the riot with what the domestic court also saw as the necessity of compliance with a police order irrespective of its essence and its rationale, an order which led to the imposition of restrictions on a journalist’s freedom of expression through his arrest, detention, prosecution and conviction for a criminal offence simply because he had the courage to do his duty in furtherance of the public interest. The majority speak of an analysis of Article 10 of the Convention carried out by the domestic court. My own understanding is that, at least in the case of the applicant, there was no real analysis at all and that the domestic court’s judgment was more by way of declaration than based on reasoning. It has not been substantiated why it was necessary in a democratic society to equate a professional journalist, operating within recognised professional limits in covering the demonstration, with any of the people taking part in the demonstration and to impose drastic criminal restraints on him.

I consider that the order should not have been intended or interpreted as directed against the applicant as a journalist covering the events in question, since his presence was not connected with what needed to be countered and resolved. I also consider that if the domestic courts were unable to adopt such an interpretative approach, they were bound, in applying Article 10 of the Convention, to balance the competing interests involved, yet they failed to do so. It is incumbent on the national authorities to convincingly establish, by relevant and sufficient reasons, that curtailing press freedom is necessary in the sense that it meets a “pressing social need”: see, among many authorities, Cumpănă and Mazăre v. Romania [GC], no. 33348/96, §§ 88-91, ECHR 2004-XI. The Court’s case-law concerning the protection of journalistic sources illustrates the Court’s concern in this regard: see Goodwin v. the United Kingdom, 27 March 1996, Reports of Judgments and Decisions 1995-II, and subsequent cases, such as Tillack v. Belgium (no. 20477/05, 27 November 2007) and Voskuil v. the Netherlands (no. 64752/01, 22 November 2007), which are particularly instructive. In the latter case a journalist, who was called as a witness in criminal proceedings, refused to name his source even when the judge ordered him to do so. He was punished by detention for non-compliance. The Court found a violation of Article 10. It held that the judicial order was not justified by an overriding requirement in the public interest and so, in balancing the competing interests, “the interest of a democratic society in securing a free press” had to prevail. There is no indication that any such balancing exercise was carried out in the present case. On the contrary, the case reveals a one-sided attitude on the part of the authorities, one likely to create a “chilling effect” on press freedom. For the reasons I have set out I regret that I am unable to follow the majority.

Koko EIT:n lehdistötiedote, missä myös linkki koko tuomioon, löytyy täältä: here