Information Note on the Court’s case-law 192

January 2016

Erdtmann v. Germany (dec.) - 56328/10

Decision 5.1.2016 [Section V]

Article 10

Article 10-1

Freedom of expression

Conviction of journalist for taking weapon on board aircraft with a view to exposing security flaws: inadmissible

Facts – After the terrorist attacks of 11 September 2001 in New York, the applicant, a television reporter, researched the effectiveness of security checks at four German airports and made a television documentary about his investigation and findings. Carrying a hidden butterfly knife in his hand luggage, he entered the airports, passed through the security checkpoints and boarded four aeroplanes, flying from one city to the next. Footage from a hidden camera, showing his security checks, was included in the television documentary. In 2002 the report was aired by a private television channel and it subsequently served as a training video for security personnel. In 2003 the applicant was convicted of carrying a weapon on board an aircraft.

Law – Article 10: The applicant’s conviction had not prevented him or the television channel from creating or showing the documentary, and did non concern the broadcasting of the programme as such. However, since the conviction was a consequence of the applicant’s conduct as a journalist, it could be regarded as an interference with his freedom of expression. In this connection the Court recalled that, in line with the principles of responsible journalism, a journalist cannot claim exclusive immunity from criminal liability for the sole reason that the offence in question is committed during the performance of his or her journalistic functions.

When assessing the necessity of the interference, the Court observed that the applicant’s conviction did not relate to broadcasting the report or filming the security checks with a hidden camera or, therefore, to his journalistic activity as such. It was not based on restrictions specific to the press and the applicant was not fined for overstepping his journalistic duties and responsibilities.

Instead he was convicted of carrying a weapon on board an aircraft, pursuant to a general prohibition forming part of the ordinary criminal law which did not require proof of an intention to use the weapon or that the weapon led to a concrete threat. Moreover, the domestic courts had considered the applicant’s role as a journalist, his journalistic freedom and his protection under the right to freedom of expression but found that those elements could not justify or excuse his conduct. In their view, the applicant could have revealed the security flaws at the airport without committing a criminal offence, for example by disposing of the knife after leaving the security checkpoints. Moreover, due notably to his prior research into airport security checks, he should have known that his actions infringed the criminal law. As to the nature and the severity of the penalty, the domestic courts took into account the fact that the applicant’s report had increased airport security, that he was a journalist reporting on an issue of general public interest, and that the knife had been securely stowed away and did not lead to any concrete threat for other passengers. As a result, the applicant was sentenced to a fine of 15 daily rates converted into a warning with a deferred fine, which was the most lenient sentence possible in domestic law. That penalty could not therefore discourage the press from investigating or expressing an opinion on topics of public debate.

It followed that the applicant’s conviction did not appear to have been disproportionate and hence an unjustified restriction of his right to freedom of expression. There was accordingly no appearance of a violation of Article 10 of the Convention.

Conclusion : inadmissible (manifestly ill-founded).

(See also Pentikäinen v. Finland [GC], 11882/10, 20 October 2015, Information Note 189 ; Axel Springer AG v. Germany [GC], 39954/08, 7 February 2012, Information Note 149 ; and Stoll v. Switzerland [GC], 69698/01, 10 December 2007, Information Note 103 )

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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