February 14, 2017
Guest post by Jonathan McCully, Legal officer at the Media Legal Defence Initiative, which supported the case, and Editor of Columbia Global Freedom of Expression
On 9 February 2017, the European Court of Human Rights handed down an important judgment in Selmani and Ors v. The Former Yugoslav Republic of Macedonia (Application No. 67259/14), a case that considers the forcible removal of journalists from a parliamentary press gallery. The Court’s finding that the removal was a violation of the right to freedom of expression is a valuable pronouncement in a global context where a number of states have used similar measures to suppress reporting on parliamentary affairs.
The case flowed from the events of 24 December 2012 in the Parliament of Macedonia, where a number of opposition MPs approached the Speaker to noisily protest against the procedure adopted in approving the State Budget. The actions of these MPs escalated, and later resulted in the removal of the MPs and the Speaker from Parliament by security officers. During this disruption, journalists were also removed from the Parliament’s gallery.
Subsequently, the Constitutional Court of Macedonia dismissed a complaint from the journalists that their removal violated their right to freedom of expression. In its decision, the Constitutional Court found that the Speaker of the Parliament had authority under section 43 of the Parliament Act and Rules of Procedure to direct that security officers “restore order” to Parliament. The Constitutional Court agreed that the removal was an interference with the right to freedom of expression, but concluded that the interference was necessary because of “potentially dangerous events” that threatened the safety of those in the gallery and in the chamber. The Constitutional Court also observed that the journalists submitted and published reports of the event in the evening editions of their papers, and concluded that the removal did not prevent the journalists from carrying out their professional duties because they could still follow a live stream of the chamber in the press centre, on TV, or online. Following this decision, six of the journalists filed an application with the European Court on the basis that their rights under Article 10 of the Convention had been violated.
It was common ground between the parties that the removal of the journalists from the gallery amounted to an interference with the right to freedom of expression under Article 10. It was left for the Court to consider whether the removal was “prescribed by law”, in pursuit of a “legitimate aim”, and “necessary in a democratic society”.
When considering whether the removal was “prescribed by law”, the Court noted that the Constitutional Court found a legal basis in the laws and parliamentary rules that gave the Speaker responsibility for maintaining order during parliamentary proceedings. The Court then looked at the quality of the laws to determine whether they were drafted with sufficient precision. In doing so, the Court admitted that the laws and rules did not provide explicit provisions giving security officers power to remove accredited journalists from Parliament. However, it deferred to the Constitutional Court’s finding that the laws could be used in such a way, stating that such a finding was neither “arbitrary” nor “manifestly unreasonable”. Accordingly, the removal of the applicant journalists was “prescribed by law”. The Court also found that the removal pursued the “legitimate aim” of ensuring public safety and the prevention of disorder.
In assessing whether the removal was “necessary in a democratic society”, the Court began by noting that parliaments are entitled to react when their members are engaged in disorderly and disruptive conduct as this serves the “political and legislative process”. The Court also noted the public interest in the press covering the disorder in the chamber and the response of the authorities to such disorder. The Court drew a parallel between the journalists’ role reporting such an event and their reporting on the handling of public demonstrations, reiterating that the presence of the press guarantees that the authorities can be held accountable for their conduct. The Court then implied that even greater scrutiny needs to be given where the removal of journalists occurs at a time when they are trying to report on elected representatives and the manner in which the authorities handle disorder in parliament.
In considering whether the response in the present case was supported by “relevant and sufficient reasons” and was proportionate to the “legitimate aim” being pursued, the Court took into account three factors:
In light of these considerations, the Court held that the Former Yugoslav Republic of Macedonia failed to establish that the removal of the journalists was “necessary in a democratic society”. Accordingly, the applicant journalists’ rights under Article 10 had been violated.
The Judgment in a Global Context
The Court’s findings may seem unsurprising at first sight, and many may think that the removal of journalists from parliament is an unusual occurrence. However, Macedonia joins Poland, Myanmar, Uganda, Kenya and Zambia, among others, in adopting measures that curtail the media’s ability to access and report from parliament. Relatedly, in South Africa and Tanzania, there have been occasions where live broadcasts of parliament sessions have been interfered with.
This judgment provides a useful guide for courts around the world when considering the human rights implications of removing or impeding the media’s ability to report from parliament. The Court’s emphasis on the significance of journalists being able to obtain first-hand knowledge of events through their own personal experience is particularly noteworthy. This observation would imply that live feeds of parliament are not always a justifiable alternative to journalists being actually present in the place where an event is unfolding. Such an approach compliments the decision of the UN Human Rights Committee over seventeen years ago in Gauthier v. Canada, in which the committee rejected Canada’s argument that a journalist dismissed from the parliament press gallery did not suffer a “significant disadvantage” because he could “report on proceedings by relying on broadcasting services”.
The judgment also distances itself from the Grand Chamber of the European Court’s judgment in Pentikäinen v. Finland, a decision that has been criticised by commentators, by analysing closely whether the threat to public safety posed by and/or to the journalists had a solid basis in fact and by placing less weight on whether the journalists still reported on the events that took place. Instead, the Court placed greater emphasis on whether the journalists were able to “effectively view” what was going on in the parliament. This is a welcome approach for the safeguarding of newsgathering practices in Europe and beyond.
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