24 May 2011

FOURTH SECTION

Application no. 11882/10 by Markus Veikko PENTIKÄ INEN against Finland lodged on 19 February 2010

STATEMENT OF FACTS

THE FACTS

The applicant, Mr Markus Veikko Pentikä inen, is a Finnish national who was born in 1980 and lives in Helsinki . He is represented before the Court by Mr Risto Ryti, a lawyer practising in Helsinki .

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant is a photographer and journalist for the weekly magazine Suomen Kuvalehti. On 9 September 2006 he was sent by his employer to take photographs of the demonstration which was held in protest against the ongoing Asia-Europe meeting (ASEM) held in Helsinki . The demonstration was an exceptionally large one in the Finnish context and all media followed it closely.

Before the demonstration even started, the police surrounded the demonstrators as well a group of bystanders, in total hundreds of persons, and informed them that the demonstration was cancelled. The siege lasted for three hours. In the end there were only around 20 persons left, including the applicant, who had all been asked to leave the scene. The applicant thought that this request only applied to the demonstrators. Somewhat later he indicated to the police that he was a representative of the media and that he intended to stay until the situation was over. He was wearing his press badge. A police officer accepted this. A s hort time later the police arrested the demonstrators. When leaving the scene the applicant was also arrested and he was detained for 18 hours.

On 23 May 2007 the public prosecutor brought charges against the applicant for contumacy to wards the police ( niskoittelu poliisia vastaan, tredska mot polis ).

On 17 December 2007 the Helsinki District Court ( käräjäoikeus, tingsrätten ) convicted the applicant of contumacy to wards the police but did not impose any sanction on him. The court found that the police had the right to ask the applicant to leave the scene. The interference with the applicant ’ s right to use his freedom of expression was thus based on law, and it fulfilled the legitimate aim of prevention of disorder. The interference was necessary in a democratic society. However, no sanction was imposed on the applicant as he, as a journalist, was in that situation confronted with contradictory expectations, originating from obligations imposed partly by the police and partly by his employer.

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 arrest and conviction were against the Constitution and Article 10 of the Convention. It was clear that the applicant was a journalist and that he had not participated in the demonstration or caused any disorder. The District Court had not in any way reasoned why his arrest and conviction were “necessary in a democratic society” and had thereby failed to justify the interference.

On 30 April 2009 the Court of Appeal rejected the applicant ’ s appeal without giving any reasons.

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.

On 1 September 2009 the Supreme Court refused the applicant leave to appeal.

B. Relevant domestic law

According to section 4 of the Penal Code ( rikoslaki, strafflagen , Act no. 39/1889, as amended by Act no. 563/1998) ,

“a person who

(1) fails to obey an order or prohibition issued by a police officer, within his or her competence, for the maintenance of public order or security or the performance of a duty,

(2) refuses to provide a police officer with the identifying information referred to in section 10, subsection 1 of the Police Act,

(3) fails to obey a police officer ’ s clearly visible signal or order for stopping or moving a vehicle, as referred to in section 21 of the Police Act,

(4) neglects the duty to provide assistance, as referred to in section 45 of the Police Act, or

(5) alerts the police without reason or, by providing false information, hinders police operations,

shall be sentenced, unless a more severe penalty for the act has been provided elsewhere in the law, for contumacy to wards the police to a fine or to imprisonment for at most three months. ”

COMPLAINT

The applicant complains under Article 10 of the Convention that hi s freedom of expression was violated due to the fact that he was arrested and convicted for having disobeyed the police, when the police tried to prevent him from doing h is job. The domestic courts did not in any way reason why his arrest and conviction were “necessary in a democratic society”.

QUESTION TO THE PARTIES

Has there been an interference with the applicant ’ s freedom of expression, within the meaning of Article 10 § 1 of the Convention? If so, was that interference prescribed by law and necessary in terms of Article 10 § 2? In particular, to what extent are the duties and responsibilities inherent in the applicant ’ s profession relevant to his claim and the State ’ s margin of appreciation in this field?