European Court upholds the right to record during demonstrations
Butkevich v Russia, Application no. 5865/07
On 13 February 2018, the European Court of Human Rights (ECtHR) upheld a complaint that a journalist’s rights had been violated by his arrest and detention for having taken photographs during an ongoing demonstration in Russia.
Mr Maksim Aleksandrovich Butkevich, a Ukrainian national, was employed by a Ukrainian television channel. In July 2006, he volunteered to cover the G8 Summit being held in Russia, including disseminating information online about protests, connecting journalists and protestors, and providing coverage about the issues raised by activists.
On 16 July 2006, he was ordered by a police officer to stop taking photographs of the police dispersing a gathering. According to the applicant, he complied, and further presented his press card issued by the International Federation of Journalists. However, according to two police officers, the applicant refused to stop, refused to follow them to the police vehicle to be taken to the police station, and behaved defiantly. The applicant was taken to the police vehicle by force.
The applicant was arrested and held at the police station. He was subsequently convicted by a justice of the peace, and sentenced to three days of detention.
Before the Third Section of the ECtHR, the applicant argued that his rights under article 5 (right to liberty and security), article 6 (right to a fair trial) and article 10 (freedom of expression) of the European Convention on Human Rights (European Convention) had been violated. The ECtHR upheld the applicant’s claim on all three grounds.
Specifically with regard to freedom of expression, the ECtHR noted that the gathering of information is an essential preparatory step in journalism, and an inherent protected part of press freedom. Relying on previous jurisprudence, the ECtHR reiterated that any attempt to remove journalists from the scene of demonstrations must be subject to strict scrutiny. The same strict scrutiny approach is applicable to related ensuing measures, such as prosecution for an alleged offence in relation to a demonstration.
In this regard, although the applicant was not acting in a journalistic assignment for any media outlet at the time, the ECtHR noted that it had no reason to doubt that the applicant was acting as a journalist in intending to collect information and photographic material relating to the public event, and to impart them to the public via means of mass communication. The ECtHR therefore accepted that the applicant could rely on the protection afforded to the press.
Furthermore, there was nothing to indicate that the demonstration was not peaceful or that it turned violent. In the view of the ECtHR, the domestic courts had failed to properly assess the lawfulness of the orders given by the police, and the proportionality of the interference with the applicant’s freedom of expression or freedom of peaceful assembly. Accordingly, the ECtHR upheld the applicant’s claim that there had been a violation of his right to freedom of expression under article 10 of the European Convention, and awarded him €7 000 in non-pecuniary damages.
The full judgment is accessible here.
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