DISSENTING OPINION OF JUDGE SPANO JOINED BY JUDGES SPIELMANN, LEMMENS AND DEDOV

I.

1. An interference under Article 10 of the Convention with the fundamental role of the press in imparting information to the public in a democratic society can develop in several stages. The Contracting State bears the burden of demonstrating that a pressing social need justifying the interference remains present throughout all the stages during which the press is impeded in fulfilling its vital role under the Convention as the public’s “watchdog”.

2. In the present case, I accept that the police were initially justified in apprehending the applicant at the end of the demonstration because, it is important to note, he did not take the necessary precautions to display his press card visibly and wear distinguishing clothing. However, once the police were informed that the applicant was a journalist, the social need justifying the continued interference with his Article 10 rights became gradually less pressing and ultimately ceased to exist, as it is undisputed that the applicant did not take any part in the demonstration itself or present a clear and concrete risk to public order through any hostile or violent behaviour on his part. His role was simply that of an impartial bystander observing as a journalist, on behalf of the public at large, the unfolding of a very important societal event in Finland.

3. I would emphasise that I do not contest the majority’s findings as regards the lawfulness of the interference or the legitimate aim it pursued. However, as I will explain in more detail below, the Government have not demonstrated, in the light of the respondent State’s narrow margin of appreciation in this case, that the applicant’s subsequent seventeen and a half hour period of detention – during which his professional equipment was obviously also seized, thus preventing him from reporting on the important societal events of the day – and his ensuing criminal conviction were necessary and proportionate under Article 10 § 2 of the Convention. Thus, I respectfully dissent from the Court’s finding that there has been no violation of Article 10 in the present case.

II.

4. It is a consistent and crucial theme in the Court’s Article 10 case-law that the press has a vital role to play in safeguarding the proper functioning of a democratic society. Of course, as the Court held in its Grand Chamber judgment in Stoll v. Switzerland ([GC], no. 69698/01 , § 102, ECHR 2007 ‑ V)

“all persons, including journalists, who exercise their freedom of expression under ­ take ‘duties and responsibilities’, the scope of which depends on their situation and the technical means they use ... Thus, notwithstanding the vital role played by the press in a democratic society, journalists cannot, in principle, be released from their duty to obey the ordinary criminal law on the basis that Article 10 affords them protection. Paragraph 2 of Article 10 does not, moreover, guarantee a wholly unrestricted freedom of expression even with respect to press coverage of matters of serious public concern ...”

5. However, as was also recognised in Stoll , although it may be undisputed that a journalist has violated the criminal law – for example, as in Stoll , by publishing information that was confidential – the mere fact that a journalist has acted in breach of a criminal-law provision is not the end of the matter for the purposes of the necessity and proportionality assessment which must be carried out under Article 10 § 2 of the Convention. Otherwise, Contracting States would be free to subject journalists to criminal sanctions whenever they came close to uncovering activities that cast those in power in an unfavourable light, and would thereby subvert the vital role of the press in the functioning of a democratic society.

6. The majority recognise that “a journalist cannot claim an exclusive immunity from criminal liability for the sole reason that ... the offence in question was committed during the performance of his or her journalistic functions” (see paragraph 91 of the present judgment). However, the assessment of whether there was a pressing social need to interfere with a journalist’s right under Article 10 is materially different from cases where other individuals exercise the right to freedom of expression. Hence in Stoll the Court considered it necessary to examine whether the conviction of the journalist, for disclosing confidential information in breach of the criminal law, was nonetheless necessary, and in that regard adopted the following criteria: the interests at stake, the review of the measure by the domestic courts, the conduct of the applicant and whether the penalty imposed was proportionate (see Stoll , cited above, § 112).

7. The majority have not applied the Stoll criteria in the present case in their analysis of the necessity of the interference with the applicant’s freedom of expression and also, crucially, have failed to consider cumulatively the impugned measures that interfered with the applicant’s rights under Article 10. Rather, they proceed by examining the applicant’s apprehension, detention and conviction, in turn , in order to determine whether the impugned interference, seen as a whole , was supported by relevant and sufficient reasons and was proportionate to the legitimate aim pursued (see paragraph 94 of the present judgment). In my view, that approach is incorrect. Although the facts of the present case concern the criminal conduct of a journalist whilst obtaining information during a public demonstration, rather than the disclosure of confidential information, the same criteria as developed in Stoll are applicable for assessment under Article 10 § 2 in this case, although they of course have to be adapted accordingly to the facts as they are presented here.

By dividing up the necessity assessment into an independent examination of the various measures complained of, viewed in isolation from one another, the Court fails to require the Government to answer the two most crucial questions in this case.

Firstly , why was it considered necessary to continue to interfere with the applicant’s right to freedom of expression when it became clear, immediately upon his apprehension, that he was a journalist, bearing in mind that no allegation was made that he posed a threat to public order on account of violent behaviour or was taking any active part in the demonstration?

Secondly , what pressing social need justified detaining the applicant for seventeen and a half hours and seizing his professional equipment – thus depriving him of the opportunity to report on the event as it unfolded – and then prosecuting and convicting him, for an act deemed by the domestic courts to be “excusable” under Finnish law owing to his journalistic status?

If the majority had applied the Stoll criteria to the facts of the present case, the answers to these questions would have demonstrated that the findings in today’s judgment are not warranted, as I will now explain.

III.

8. Turning to the first of the Stoll criteria, the interests at stake, it is undisputed that the Smash ASEM demonstration was an event of significant general interest in Finnish society as well as internationally, as is evidenced by the wide media exposure it attracted (see paragraph 33 of the present judgment). It goes without saying that the way in which the police dealt with the situation justified intrusive journalistic scrutiny. It is important to highlight that the applicant was apprehended when the police engaged with the last remaining protesters within the cordoned-off area, after the dispersal order had been issued. It was exactly at that moment that it became crucial for the purposes of Article 10 of the Convention for the press to be able to observe the operational choices made by the police in arresting and dispersing the remaining participants so as to secure transparency and accountability. I would refer here to the Venice Commission’s Guidelines on Freedom of Peaceful Assembly: Second Edition, adopted in 2010, drawn up by the Office for Democratic Institutions and Human Rights of the Organization for Co-operation and Security in Europe (see paragraph 55 of the present judgment), which state that third parties (such as monitors, journalists, and photographers) may also be asked to disperse, “but they should not be prevented from observing and recording the policing operation” (§§ 168-69). Also, “[p ] hotographing or video recording the policing operation by participants and other third parties should not be prevented, and any requirement to surrender film or digitally recorded images or footage to the law enforcement agencies should be subject to prior judicial scrutiny”.

9. It is unquestionable that the applicant was justified, on the basis of his freedom to impart information to the public, in taking a searching and aggressive approach to his work as a journalist, even questioning whether his Article 10 rights outweighed his duty to follow the police orders directed at the demonstrators. In fact, this was exactly the view adopted by the Helsinki District Court, when it concluded that the applicant’s act was “excusable” under Chapter 6, section 12(3), of the Penal Code. The District Court correctly acknowledged (see paragraph 37 of the present judgment) that, as a journalist, the applicant 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”. Thus, the interests at stake were such that the applicant, as a journalist, should have been given ample latitude by the police to pursue his journalistic activity, taking due account of Article 10 of the Convention. It follows that applying the first of the Stoll criteria, and thus having proper regard not just for the applicant’s own rights but for the important societal interests which were also at stake, the margin of appreciation afforded to the respondent State is very limited. On that basis alone, it is already doubtful that there was a pressing social need justifying the intrusive interferences with the applicant’s Convention rights, given that they involved not only his initial arrest but also his detention and the seizure of his professional equipment, his prosecution and ultimately his criminal conviction for contumacy towards the police.

10. As regards the second of the Stoll criteria, the review of the measure by the domestic courts , the Court’s role under Article 10 of the Convention is limited to assessing whether the grounds relied on by the domestic authorities were relevant and sufficient. I note at the outset that the domestic courts’ role in this case was limited to assessing whether the conditions for convicting the applicant of contumacy towards the police under Chapter 16, section 4(1), of the Finnish Penal Code were fulfilled. In the Helsinki District Court’s judgment (see paragraph 37 of the present judgment), no examination was carried out to determine whether there was a pressing social need for convicting the applicant, taking into account all the measures to which he had been subjected. There was no analysis of the necessity of his detention or the seizure of his journalistic equipment. Furthermore, I disagree with the majority that the reasoning of the Helsinki District Court shows that it struck a fair balance between the conflicting interests at stake, as required by the case-law of the Court. The District Court gave a very laconic assessment of the necessity of convicting the applicant, finding simply that “it was necessary to stop the situation at Kiasma by ordering the crowd to disperse and asking the persons to leave the area”. On that basis alone, the District Court concluded that the “conditions for restricting Pentikäinen’s freedom of expression by ordering him to disperse along with the remaining crowd were fulfilled”. The District Court’s subsequent reasoning, distinguishing the applicant’s case from Dammann v. Switzerland (no. 77551/01, 25 April 2006), is also summed up in a single sentence, in which it proclaimed that “the cited case is not similar to the case at hand”.

These are abstract general statements, and not reasoning that conveys the way in which the balancing of interests was performed. Furthermore, in the latter part of its judgment the District Court nevertheless concluded, as I mentioned above, that the applicant’s act was “excusable” under Chapter 6, section 12(3), of the Penal Code. In this sense, the District Court’s judgment is internally inconsistent for the purposes of the necessity assessment required under Article 10 § 2 of the Convention: on the one hand, it was necessary to apprehend the applicant for disobeying the police, but, on the other, it was nonetheless excusable for him to act in that way! It clearly follows that the Helsinki District Court’s reasoning, although perhaps relevant, cannot be considered sufficient under Article 10 § 2 of the Convention.

11. Turning to the third of the Stoll criteria, the conduct of the journalist, it is worth recalling the pertinent facts in this case. Firstly , it is undisputed that the applicant took no direct or active part in the demonstration. He was apprehended for not obeying police orders to disperse when the police decided to engage with the last remaining participants in the cordoned-off area, and not for rioting or other violent behaviour. Secondly , as the majority correctly conclude (see paragraph 98 of the present judgment), the applicant was not readily identifiable as a journalist prior to his apprehension. Thirdly , it nevertheless appears from the pre-trial investigation, as acknowledged in the Court’s judgment (see paragraph 99), that the applicant identified himself to the apprehending officer. When the police officer asked for his identification, the applicant presented his press card.

12. As I mentioned at the outset, I accept that the police were initially justified in apprehending the applicant at the end of the demonstration as he was not displaying his press card visibly and was wearing clothing that did not distinguish him from the protesters. However, the duty of the Government to demonstrate the existence of a pressing social need for interfering with the applicant’s Article 10 rights does not stop there, as the applicant was subsequently subjected to other restrictive measures, even though the police were well aware that the applicant was a journalist, as the apprehending officer’s testimony confirmed. It is in that context that the correct characterisation of the applicant’s conduct during the demon ­ stration becomes decisive. In that respect it is noteworthy that the majority seem to assess a number of important facts – relating to the events, the applicant’s conduct and his state of mind – to his disadvantage, although other justifiable explanations for the applicant’s actions are equally plausible (see, for example, paragraphs 100-01, 103 and 107 of the present judgment). I stress that it is clear that if a journalist violates the criminal law by directly and actively taking part in a hostile or violent demonstration, Article 10 will, in principle, not provide a safe haven from measures such as detention and possible prosecution. However, that was clearly not the case here. The applicant made a judgment call in the middle of a tense and developing situation, to the effect that his freedom to impart information to the public should outweigh his duty to follow the dispersal order. Thus, the Helsinki District Court correctly characterised the applicant’s act as excusable. It is true, as the majority note, that a journalist has of course to be aware of the fact that he or she assumes the risk of being subject to legal sanctions by not obeying the police (see paragraph 110). However, the majority overlook the crucial importance of recognising at the same time that a journalist can justifiably consider that his actions are protected on the basis of his freedom of expression. In the light of the applicant’s conduct, the Government have therefore in no way demonstrated that, once the police were informed of his journalistic status and shown his press card, there remained a pressing social need which justified subjecting him to a seventeen-and-a-half-hour period of detention, taking away his journalistic equipment, and prosecuting and convicting him for contumacy towards the police.

Lastly, as regards the fourth of the Stoll criteria, whether the penalty imposed was proportionate , the majority limit their findings by observing that the “applicant’s conviction amounted to a formal finding of the offence committed by him and, as such could hardly, if at all, have any ‘chilling effect’ ... on the work of journalists at large” (see paragraph 113 of the present judgment). With all due respect, to suggest that the decision to prosecute and convict a journalist for a criminal offence does not, in a case such as the present one, have, by itself, a chilling effect on journalistic activity is overly simplistic and unconvincing. On the contrary, it is in my view not unreasonable to consider that today’s decision, accepting as permissible under Article 10 § 2 of the Convention the prosecution of the applicant and his conviction for a criminal offence, will have a significant deterrent effect on journalistic activity in similar situations occurring regularly all over Europe.

13. To sum up, applying the Stoll criteria to the examination of whether the applicant’s act, although criminal according to domestic law, justified the continued and developing interferences with his freedom of expression under Article 10 § 2 of the Convention, I conclude that the Government have not demonstrated that a pressing social need existed for that purpose immediately after the police were made aware of the applicant’s journalistic status. I note that it is not in the least convincing for the majority to attempt to limit their findings to the “particular circumstances of the instant case” (see paragraph 114 of the present judgment). On the contrary, it is quite clear that the reasoning of the majority will unfortunately allow Contracting States considerable latitude in imposing intrusive measures on journalistic activity in public settings where force is used by law-enforcement officials.

IV.

14. Today’s Grand Chamber judgment is a missed opportunity for the Court to reinforce, in line with its consistent case-law, the special nature and importance of the press in providing transparency and accountability for the exercise of governmental power by upholding the rights of journalists to observe public demonstrations or other Article 11 activities effectively and unimpeded, so long as they do not take a direct and active part in hostilities. Recent events in many European countries demonstrate, more than ever, the necessity of safeguarding the fundamental role of the press in obtaining and disseminating to the public information on all aspects of governmental activity. That is, after all, one of the crucial elements of the democratic ideal protected by the European Convention on Human Rights.

[1] . S ee the OSCE/ODIHR/Venice Commission Guidelines on Freedom of Peaceful Assembly: Second Edition), prepared by the OSCE/ODIHR Panel of Experts on the Freedom of Assembly and by the Venice Commission, adopted by the Venice Commission at its 83rd Plenary Session (Venice, 4 June 2010 ) .

[2] . See S. Greer, “The interpretation of the European Convention on Human Rights: Universal Principle or Margin of Appreciation?”, UCL Human Rights Review , vol. 3 , 2010 .

[3] . S ee J . Waldron, “Fake Incommensurability: A Response to Professor Schauer”, 45 Hastings L.J . 813, 817 (1994), and S. Tsakyrakis, “Proportionality: An assault on human rights?”, International Journal of Constitutional Law , vol. 7, issue 3, 2009 .