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No Violation in Arrest of Photographer at Protest

(CN) - Police did not violate a Finnish photojournalist's freedom of expression by arresting him after he refused to leave the scene of a protest-turned-riot, the European Court of Human Rights ruled.

Markus Pentikainen, a journalist for the Helsinki weekly magazine Suomen Kuvalehti, covered a protest of the 2006 Asia-Europe summit. The demonstration turned violent and police ordered people to leave.

Pentikainen did not leave the scene, claiming that he believed the orders applied only to the protesters. Police eventually arrested him and 120 others, charging him with disobeying law enforcement.

A district court found Pentikainen guilty, based on witness statements that he never told police he was a journalist. Although the man claimed he showed police his press badge, the arresting officer testified that he had no idea Pentikainen was a journalist until a story appeared in Suomen Kuvalehti a day after the arrest.

Pentikainen took his appeal all the way to Finland's highest court, which declined to hear his case. So he sued in the European Court of Human Rights, claiming that his freedom of expression - guaranteed by Article 10 of the European Convention on Human Rights - had been violated.

For its part, the Finnish government argued that Pentikainen had been free to cover the protest up until the point police cleared the scene, and none of his equipment or photographs had been confiscated. Pentikainen also received no punishment for his conviction, leading the government to believe that his freedom of expression had not been violated.

While stressing "the essential function the press fulfills in a democratic society," a panel for the Strasbourg-based human rights court noted that Pentikainen chose to stray from the secure press area to cavort with the protesters led to his arrest.

"The court considers that Pentikainen was not as such prevented from exercising his freedom of expression and reporting the event," the court wrote. "Moreover, he was offered the alternative to follow the demonstration from the secured area reserved to the press. His arrest and conviction only related to disobeying the police as he failed to obey their orders. As the government pointed out, the fact that Pentikainen was a journalist did not give him a greater right to stay at the scene than the other people."

Although police held Pentikainen for 18 hours, the court noted that he was arrested late in the evening, and Finnish law prohibits interrogations between 10 p.m. and 7 a.m. And police released the man immediately upon learning he was a journalist - a point Pentikainen neglected to mention to the intake officer as well.

"The court finds that, in any event, any interference with Pentikainen's exercise of his journalistic freedom was only of limited extent, given the opportunities made available to him to cover the event adequately," the court wrote. "The conduct sanctioned by the criminal conviction was not his journalistic activity as such, but his refusal to comply with a police order at the very end of the demonstration, when the latter was judged by the police to have become a riot."

The court continued: "Altogether, 74 defendants were accused of several types of offences. The district court found it established that Pentikainen had committed a crime by disobeying the lawful orders of the police. However, the court did not impose any penalty on him as his act was considered excusable. He was considered, as a photographer and journalist, to be confronted with contradictory expectations, arising from obligations imposed on the one hand by the police and on the other hand by his employer. Moreover, the court notes that, according to the domestic law, no entry of the conviction was made on the applicant's criminal record as no penalty was imposed.

"The court considers that the domestic courts struck a fair balance between the competing interests at stake, and were entitled to decide that the interference complained of was 'necessary in a democratic society,'" the Strasbourg court concluded.

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