A Maltese judge at the European Court of Human Rights has disagreed with a court ruling that justified a Finnish journalist’s arrest and conviction for disobeying a police order while covering a demonstration.

The ruling, that the journalist’s fundamental right to freedom of expression had not been violated, was likely to create a “chilling effect” on press freedom, Chief Justice Emeritus Vincent De Gaetano said in a dissenting opinion.

Mr Justice De Gaetano joined Cypriot Judge George Nicolaou in voting against the majority in a case filed by journalist Markus Veikko Pentikäinen against the Finnish government. The case was over his arrest, detention, prosecution and conviction for disobeying police orders while covering a demonstration in August 2006.

The ruling was likely to create a ‘chilling effect’ on press freedom

In their dissenting opinion annexed to the ECHR judgment, the two judges felt that in dismissing the breach claim, the European court had justified the “one-sided attitude” of the Finnish authorities.

They argued that the action taken against the journalist unnecessarily interfered with the right of newsgathering, protected under Article 10 of the European Convention of Human Rights.

The judgment was criticised by the International Federation of Journalists and the International Press Institute who said that the European Court had not sufficiently respected journalists’ rights and the role of the media to cover public demonstrations.

Mr Pentikäinen, a 34-year-old journalist and photographer working for the weekly magazine Suomen Kuvalehti, had been arrested while covering a protest against an Asia-Europe meeting that was being held in Helsinki. The demonstration was a large one and the previous day the Helsinki Police Department had been alerted that it would be a “hostile” event.

It turned out to be a violent protest, with bottles, stones and jars filled with paint hurled at the public and the police from the outset. Some demonstrators also kicked and hit police officers.

A separate area was reserved for representatives of the media so that they could freely and safely observe the situation and cover the demonstration.

But at some point, the police decided to interrupt the demonstration which had escalated to a riot. It was announced over loudspeakers that the demonstration was being stopped and that the crowd should leave the scene. The police also sealed off the area.

However, a core group of around 20 people, including Mr Pentikäinen, remained in the demonstration area. The journalist told the domestic and European courts that he thought the order to leave the area only applied to the demonstrators and not to him as he was working.

Mr Pentikäinen, who was wearing his press badge, told the police he was a media representative but the police still arrested him and another 120 people.

He was detained for almost 18 hours before being charged with disobeying police orders. He was let off with a slap on the wrist by the Finnish courts, which did not impose any penalty since the offence was excusable.

He appealed the decision twice before taking it to the European Court which also threw out his breach of freedom of expression claim.

But the dissenting judges argued against equating the professional journalist with any of the people taking part in the demonstration and imposing drastic criminal restraints on him.

They voted against the imposition of restrictions on the journalist’s freedom of expression through his arrest, detention, prosecution and conviction for a criminal offence “simply because he had the courage to do his duty in furtherance of the public interest”.

The judges drew parallels with a case before the ECHR which ruled in a journalist’s favour when he was charged and convicted for disobeying a judge who had ordered him to reveal his source.

In that case, the court had found that the judicial order was not justified by an overriding public interest requirement and that in balancing the competing interests, the interest of a democratic society in securing a free press had to prevail.

The two judges held that there was no indication there was any such balancing exercise in the Finnish journalist’s case.