CASE OF PENTIKÄINEN v. FINLAND
No violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression)
Aleš Pejchal;André Potocki;Angelika Nußberger;Dean Spielmann;Dmitry Dedov;Egidijus Kūris;Elisabeth Steiner;George Nicolaou;Guido Raimondi;Ineta Ziemele;Johannes Silvis;Josep Casadevall;Khanlar Hajiyev;Kristina Pardalos;Ledi Bianku;Linos-Alexandre Sicilianos;Mark Villiger;Päivi Hirvelä;Paul Lemmens;Paul Mahoney;Robert Spano;Vincent A. De Gaetano
9. The applicant was born in 1980 and lives in Helsinki. 10. The applicant is a photographer and journalist who is employed by the weekly magazine Suomen Kuvalehti. On 9 September 2006 he was sent by his employer to take photographs of the demonstration which was being held in protest against the on-going AsiaEurope meeting (ASEM) in Helsinki. The demonstration was an exceptionally large one in the Finnish context and all media followed it closely. The applicant was to conduct an extensive report on the demonstration for the paper version of the magazine and also to publish it online immediately, once the demonstration had ended. ’ submissions, including the DVD material covering the Smash ASEM event (see paragraph 7 above) as well as the Helsinki District Court judgment (see paragraph 37 below). 12. On 30 August 2006, before the demonstration took place, the Finnish Security Intelligence made an assessment of the risk levels inherent in the upcoming Smash ASEM demonstration and alerted the Helsinki Police Department that the demonstration would be a hostile one and would not aim to highlight any clear political message. At that time the Police Department did not manage, despite all efforts, to establish contact with the organisers of the demonstration. The police based their subsequent actions, inter alia, on these grounds. 13. A similar risk assessment had also been made in the context of two earlier demonstrations which had taken place in Helsinki during the same year, both of which had turned violent. The first one was the EuroMayDay demonstration of 30 April 2006, when a march of approximately 1,500 persons evolved into a riot with projectiles being thrown and property damaged. Consequently, the Helsinki District Court found eight persons guilty of violent rioting and resisting the police by violence and imposed suspended prison sentences. A similar incident took place during the Helsinki Night of Arts on 24 August 2006 which also resulted in the destruction of property and violence and led to the detention of 56 persons. 14. On 8 September 2006 a so-called Dongzhou Coalition notified the police of the Smash ASEM demonstration. According to the report of the Deputy Parliamentary Ombudsman (see paragraph 34 below), the police did not have any information about the Dongzhou Coalition and it was thus unclear to them who the organiser was in reality. It appears from public sources that the said “coalition” was an informal group open to anyone who agreed with the idea defended by the Smash ASEM demonstration and who undertook not to bring any party emblems to the demonstration site. 15. The demonstrators announced that they were planning to march on 9 September 2006 between 5.45 p.m. and 9 p.m. from Kiasma Museum of Contemporary Art – an area of dense traffic – to the Helsinki Exhibition and Convention Centre where the ASEM summit was to be held, a distance of 4.9 kilometres. The announced march route was the following: Mannerheimintie – Kaivokatu – Siltasaarenkatu – Agricolankatu – Kaarlenkatu – Helsinginkatu – Läntinen Brahenkatu – Sturenkatu – Aleksis Kivenkatu – Ratapihantie – Asemapäällikönkatu – Ratamestarinkatu – Rautatieläistenkatu – ending at the park next to the Velodrome which is close to the summit venue. The theme of the demonstration was to oppose the ASEM summit, with some focus on human rights issues. In posters inviting people to take part in the demonstration, the demonstrators were asked to wear black clothing. The posters also portrayed a demonstrator throwing a Molotov cocktail and they encouraged would-be participants, inter alia, to “bring even a little bit of disorder also to the streets of Helsinki” (“tuoda edes hieman sekasortoa myös Helsingin kaduille”, att få även en liten bit av kaos också på gatorna i Helsingfors). 16. According to the Government, the police were able to make telephone contact with one of the organisers named as the contact person for the event. However, that person, acting on behalf of the organisers, refused to discuss matters relating, inter alia, to the conditions on which the demonstrators would be able to march from the event-site to the vicinity of the exhibition centre where the ASEM Summit was being held. This refusal extended also to police efforts to establish contact with the organisers at the event-site itself. 17. According to the Government, there was a separate area reserved by the police for media representatives to cover the event. It was located at Paasikivi Square, opposite the Kiasma Museum of Contemporary Art, on the other side of Mannerheimintie. The police, as standard procedure, had notified major Finnish media organisations of the Smash ASEM event and included the contact information of the police’s public relations unit, which was ready to discuss any questions the media might have about covering the event, including information about an area reserved for the media’s convenience. Furthermore, the Helsinki District Police public relations unit had reserved a senior officer to be present at that very same area to answer any questions media representatives might have, as well as to give interviews on the events that unfolded during the day. 18. The demonstration was to start at 6 p.m. on 9 September 2006. Some 500 bystanders, a core group of about 50 demonstrators and some 50 journalists congregated at the departure point of the march. The police had made security preparations for the event by deploying 480 police and border guard officers. By Finnish standards, the scale of the police preparations was exceptional. 19. At the start of the demonstration, bottles, stones and jars filled with paint were thrown at the public and policemen. Some demonstrators kicked and hit police officers. Apparently at around 6.05 p.m., policemen surrounded the area of the demonstration. At this point people were free to pass through the line of policemen. The police announced several times over loudspeakers that a peaceful demonstration was allowed to take place on the spot but that the crowd was not allowed to demonstrate by marching. 20. After the escalation of violence, the police considered at 6.30 p.m. that the event had turned into a riot. From 6.30 p.m. to 7.17 p.m. the police sealed off the area in an effort to contain the rioting. The crowd tried to break through the police defence line. However, during this time, the police cordon did allow families with children, and representatives of the media, to pass through. This passage was, at times, plagued by bottles and other projectiles being thrown at the spot where people were leaving. 21. The police announced over loudspeakers that the demonstration was stopped and that the crowd should leave the scene. This announcement was repeated several times. Hundreds of people then left voluntarily via several exit routes established by the police. When leaving, they were asked to show their identity cards and their belongings were checked. 22. The applicant claimed that the line of policemen surrounding the cordon was extremely tight and multi-layered. The visibility from outside the cordon to inside was practically non-existent. The police minibuses and detention buses also impeded visibility. At 7.15 p.m. the police started to set up a second, wider cordon and fenced off the whole immediate downtown area. It was not possible to see from nearby streets to the Kiasma area. 23. Some demonstrators were apprehended within the cordoned-off area by force. The apprehensions by the police were effected by using the "paint-chain" method, part of which includes the opening up of the police cordon to allow detaining officers to act, followed by that cordon’s immediate closure after the detained person is secured. 24. The police announced repeatedly that the crowd should disperse. The applicant claimed that he heard the police order that the area be cleared for the first time at 8.30 p.m. The applicant called his employer and they had a conversation about whether the applicant should leave the area. The applicant noted that on the basis of, inter alia, this conversation, he came to the conclusion that his presence inside the cordon was necessary. 25. Towards the end of the demonstration, the applicant maintained that he had placed himself between the police and the demonstrators. The police continued to order the crowd to disperse, stating that any person who did not leave would be apprehended. At about 9 p.m. a police officer told the applicant personally that he had one last chance to leave the scene. The applicant told the police officer that he was reporting for Suomen Kuvalehti and that he was going to follow the event to its end, after which the police officer had left him alone. The applicant thought that the police would not interfere with his work after he had given them this explanation. 26. By 9 p.m., about 500 people had left the scene via the police checkpoints. According to the applicant, about 20 demonstrators were still sitting on the ground in the middle of the first cordoned-off area, closely encircled by the police. The demonstrators held on to one another and were holding each other’s arms. The situation inside the cordon had already been peaceful for an hour at this point. After this, the police broke up the crowd of demonstrators and apprehended the protesters. 27. The applicant claimed that, before he was apprehended, he heard a police officer shout: "Get the photographer!" The applicant was standing next to a former Member of Parliament and taking photographs when he was apprehended. He told the apprehending officer that he was a journalist, which the police officer later confirmed. The apprehending officer stated during the pre-trial investigation that the applicant did not resist the apprehension and that he had asked to make a telephone call, which he had been allowed to do. The applicant called his colleague at the magazine, explaining that the police had detained him and that he did not know what was going to happen next. He thought that he would be released soon. The applicant had also told the apprehending police officer that he had cameras in his bag, which information was taken into account by the police officer: the applicant was allowed to put his camera equipment away in his camera bag. When the apprehending police officer had asked for identification, the applicant had presented his press card. Another police officer present during the applicant’s apprehension stated during the pre-trial investigation that the applicant did not resist apprehension but that he had not heard the applicant identify himself as a journalist. The apprehending officer also testified that he had filled in the apprehension document, giving the reasons for the applicant’s apprehension and recording his personal information. According to the pre-trial investigation report, the basis for the applicant’s apprehension was contumacy towards the police. 28. The applicant was then taken to a bus for detainees. In the bus, he allegedly explained to the police again that he was a magazine photographer. The applicant was taken to the police station where he asked to speak with the chief constable. He allegedly explained again that he was a journalist but his requests were ignored. He claimed that he “lifted” his press card and started to wear it visibly on his chest thereafter. The applicant also claimed that the receiving police officer at the police station had to remove his press card which was hanging around his neck. According to the applicant, the receiving police officer at the police station was therefore aware that he was a journalist. While in the custody cell, the applicant allegedly shouted also to passing police officers that they had apprehended a journalist, but he was ignored. 29. The applicant claimed that his camera equipment and memory cards had been confiscated. However, the Government maintained that, as soon as the police had found out that the applicant was a member of the press, his camera, memory cards and other equipment were immediately treated as journalistic sources and were not confiscated. He had been able to retain the photographs and no restrictions on the use of the photographs had been imposed on him by any authority at any stage. According to the report of Deputy Parliamentary Ombudsman (see paragraph 34 below), the police had checked the content of the detainees’ mobile telephones. However, it is not clear whether the applicant’s mobile telephone was checked and whether his memory cards were inspected. 30. The police kept the applicant in detention from 9 September at 9.26 p.m. until 10 September at 3.05 p.m., that is, for 17.5 hours. He was interrogated by the police on 10 September between 1.32 p.m. and 1.57 p.m. 31. The applicant’s employer, the editor-in-chief of the magazine, apparently learned about the applicant’s apprehension and that he was being held in police custody. It would appear that he telephoned the police station but was given no information concerning the applicant’s apprehension. According to the applicant, it was only when the editor-in-chief called a senior official (whose name the applicant did not mention in his submissions) in the Ministry of Interior the following day that preparations were made for the applicant’s release. 32. The police apprehended altogether 128 persons at the demonstration site. The police released minors (sixteen individuals) after a few hours’ apprehension. The majority of those who were apprehended were released on 11 September 2006. The applicant was the seventh detainee to be interrogated and the sixth to be released after minors. The last suspect was released on 12 September 2006 at 11.07 a.m. 33. Both domestic and international media reported the event and the police measures widely. The matter was also the subject of a wide-ranging investigation by the Deputy Parliamentary Ombudsman in 2006 and 2007. However, due to procedural rules, the Deputy Parliamentary Ombudsman could not investigate the applicant’s case because the criminal proceedings were pending against him at that time. 34. It appears from the report of the Deputy Parliamentary Ombudsman of 9 September 2006, inter alia, that the police did not have any information about the Dongzhou Coalition and that it was thus unclear to them who the organiser of the demonstration was in reality. It also appears that the police checked the content of the detainees’ mobile telephones. Moreover, the Deputy Parliamentary Ombudsman criticised, inter alia, the fact that there had been an insufficient number of check-points in relation to the number of people, and that the three-hour duration of holding people within the cordoned-off area was unnecessarily long. The Deputy Parliamentary Ombudsman also questioned the legality of the security checks. 35. On 5 February 2007 the police informed 37 suspects that, for their part, the preliminary investigation was discontinued and that their cases would not be referred to the public prosecutor for the consideration of charges. The public prosecutor brought charges against 86 persons altogether. 36. On 23 May 2007 the public prosecutor brought charges against the applicant for contumacy towards the police (niskoittelu poliisia vastaan, tredska mot polis) under Chapter 16, section 4, subsection 1, of the Penal Code (rikoslaki, strafflagen). 37. On 17 December 2007 the Helsinki District Court (käräjäoikeus, tingsrätten) found the applicant guilty of contumacy towards the police under Chapter 16, section 4, subsection 1, of the Penal Code but did not impose any penalty on him. The applicant stated before the court that he had heard the orders to disperse at around 8.30 p.m. but had understood that they concerned only the demonstrators. The court found it established that the police actions had been legal and that the applicant had been aware of the orders of the police to leave the scene but had decided to ignore them. It appeared from the witness statements given before the court that the applicant had not said or indicated to a police officer standing nearby at the time of the apprehension that he was a journalist. According to this police officer, this fact only became known to him when the relevant magazine appeared. It appeared also from the witness statement of another journalist that he and a third photographer, who had been in the sealed-off area, had been able to leave the scene without consequences just before the applicant was apprehended. This last remaining journalist witnessed that he had taken his last photograph at 9.15 p.m. and left the area just 2 to 3 minutes before the applicant’s apprehension took place. The District Court found it further established that the police orders had been clear and that they had manifestly concerned everyone in the crowd, which consisted of demonstrators as well as bystanders and other members of the public. Moreover, the District Court examined the justification of the interference of the applicant’s right under Article 10 of the Convention in the following manner: “... It is disputed whether Pentikäinen had, as a journalist and on the basis of his freedom of expression, the right not to obey the orders given to him by the police. Pentikäinen had been prepared to use his freedom of expression as a photographer. The police orders to disperse therefore restricted Pentikäinen’s freedom of expression. The question is whether there was a justification for this restriction. According to Article 12 of the Constitution and Article 10 of the European Convention of Human Rights, everyone has the right to freedom of expression. It includes a right to publish and distribute information without the interference of the authorities. According to the Constitution, more detailed provisions on the exercise of the freedom of expression are laid down by an Act. In accordance with Article 10 § 2 of the European Convention of Human Rights, the exercise of the freedom of expression may be subject to formalities, conditions, restrictions or penalties which are prescribed by law. According to the said Article and the case-law of the Human Rights Court, three requirements must be taken into account when assessing the restrictions: 1) the restriction must be prescribed by law, 2) it must have an acceptable reason and 3) it must be necessary in a democratic society. First of all, the District Court notes that the police have power, in accordance with sections 18 and 19 of the Police Act, to cordon off an area and to disperse a crowd. On the strength of this power, the police gave an order to disperse to the persons remaining in the Kiasma-Postitalo area, which order Pentikäinen also refused to follow. The restriction was thus prescribed by law. Secondly, the District Court considers that the powers stipulated in sections 18 and 19 of the Police Act relate to the maintenance of public order and security and to the prevention of disorder or crime, and that in this case the order to disperse given to, among others, Pentikäinen relates to the prevention of disorder. The restriction has therefore an acceptable reason. Thirdly, it must be examined whether the order to disperse given to Pentikäinen and the obligation to follow it was necessary in a democratic society. The District Court finds that it was necessary to stop the situation at Kiasma by ordering the crowd to disperse and by asking the persons to leave the area. The District Court concludes that, in the case at hand, the conditions for restricting Pentikäinen’s freedom of expression by ordering him to disperse along with the remaining crowd were fulfilled. The District Court has taken a stand on the elements having an effect on the punishability of Pentikäinen’s act below. The case referred to by Pentikäinen (Dammann v. Switzerland, 25 April 2006) concerned a situation in which a journalist had been convicted in Switzerland of incitement for a breach of official secrecy when he had asked for and received information from an administrative assistant in the public prosecutor’s office about some registry entries. The Court found that the applicant’s conviction could prevent journalists from participating in public discussions about questions of general interest. The conviction was not in proper proportion to the aims sought and Article 10 of the Convention had thus been violated. The District Court finds that the cited case is not similar to the case at hand. ...” However, relying on Chapter 6, section 12, of the Penal Code, no penalty was imposed on the applicant as the offence was comparable to “an excusable act” (anteeksiannettavaan tekoon rinnastettava, jämförbar med en ursäktlig gärning). The District Court found that: “... The punishment of Pentikäinen is waived in accordance with Chapter 6, section 12 § 3 of the Penal Code because the offence, due to special reasons related to the act, can be deemed comparable to an excusable act. As a journalist, Pentikäinen was forced to adapt his behaviour in the situation due to the conflicting expectations expressed by the police, on the one hand, and by his profession and employer, on the other hand. ...” 38. By letter dated 23 January 2008 the applicant appealed to the Helsinki Court of Appeal (hovioikeus, hovrätten), claiming that the District Court should have dismissed the charges against him. He argued that his apprehension and the fact that he was found guilty were against the Constitution and Article 10 of the Convention. The applicant was a journalist and he had not participated in the demonstration or caused any disorder. The District Court had not reasoned why his apprehension and conviction were “necessary in a democratic society” and had thereby failed to justify the interference. 39. On 30 April 2009 the Court of Appeal rejected the applicant’s appeal without giving any further reasons. 40. By letter dated 24 June 2009 the applicant further appealed to the Supreme Court (korkein oikeus, högsta domstolen), reiterating the grounds of appeal already presented before the Court of Appeal. 41. On 1 September 2009 the Supreme Court refused the applicant leave to appeal.