The European Court of Human Rights has found a violation of the right to freedom of expression in Butkevich v Russia, a case involving the arrest, detention and conviction of Maksim Butkevich, a Ukrainian journalist covering a street protest at the 2006 G8 Summit in St Petersburg. At the time of his arrest Mr Butkevich was photographing police engaged in the arrest and removal of protestors.
The protest, which took place on 16 July 2006, was the subject of an intervention by the police. In the course of dispersing protestors, the police ordered Mr Butkevich to switch off his camera, which he said he complied with. Nonetheless he was subsequently taken to a police station and, despite clearly identifying himself as a journalist, was arrested. He was eventually convicted and detained for two days.
Mr Butkevich brought the case to the European Court alleging that by arresting him at the protest and, subsequently, convicting and detaining him, Russia had violated his human rights. In a unanimous judgment, the Court agreed.
Media Defence, ARTICLE 19, and the Mass Media Defence Centre (MMDC) submitted a joint intervention to the Court in this case. The intervention focused on the essential function of journalists in reporting on public protests and the importance of ensuring they can carry out that role effectively. It outlined the international standards on press freedom in respect to protests. More specifically, it considered the serious implications of a general requirement on journalists to identify themselves during protests, and the “chilling effect” of criminal sanctions when they are imposed on journalists despite their distinct role in protests.
In its judgment the Court notes that Mr Butkevich relied on the joint intervention to emphasise the important function journalists play in gathering and imparting information to the public. That function was the subject of a recent negative decision by the European Court, in Pentikäinen v. Finland. In that case, the Grand Chamber held that there was no violation of the right to freedom of expression where the journalist did not follow a police order to leave the scene of a demonstration that had turned violent.
The joint intervention urged the Court to interpret the Grand Chamber’s decision “in a manner which would not have an unintended ‘chilling effect’ on journalists covering protests”. In its judgment, the Court emphasised that removal of journalists from the scene of demonstrations and protests must be subject to ‘strict scrutiny’, and noted that, unlike in Pentikäinen, the prevention of public disorder was not a consideration in this case. The Court did however emphasise that the ‘strict scrutiny’ standard applies not only to instances of removal, but also “ensuing measures such as prosecution for an alleged offence in relation to a demonstration.”
Padraig Hughes, Media Defence’s Legal Director said, “Reporting on protests and demonstrations is an essential function of journalism. Although disappointed the Court did not explicitly address the negative consequences of Pentikäinen in its judgment, we welcome its restatement of the protections that journalists are entitled to when carrying out this often dangerous task.”
Media Defence’s intervention can be read here. Media Defence would like to thank Caoilfhionn Gallagher QC and Keina Yoshida of Doughty Street Chambers for drafting the intervention, and Otto Volgenant, Prof. Dr. Dirk Voorhoof, and Marie-Andrée Weiss for their valuable input.
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