In order to document responsible journalism, one must take into account in addition to the accurate and reliable information provided by journalist, his or her behavior. Irresponsible journalism is not covered by the protection of freedom of expression

JUDGMENT

Zarubin and others v. Lithuania 19-12-2019 (no. 69111/17, 69112/17, 69113/17 and 69114/17)

see here

SUMMARY

Protection of the public interest and freedom of expression. Deportation from Lithuania and a ban on the re-entry of four Russian journalists working for the Russian state broadcaster after their actions at a conference in Vilnius.

The Court was prepared to accept that the measures against the applicants constituted an infringement of their right to freedom of expression in accordance with Article 10.

However, it considered that the authorities had shown that the measures were necessary to protect the interests of national security and proportionately. In particular, the applicants’ conduct at the conference – characterized by the authorities as aggressive and defiant – had not been carried out in accordance with the principles of responsible journalism. The applicants’ expulsion had not been ordered because of the dissemination of any ideas, but because of their provocative actions. Non-violation of the ECHR.

PROVISIONS

Article 10

Article 6

Article 4 of the 4th Protocol

PRINCIPAL FACTS

The applicants, Pavel Zarubin, Alexander Makarov, Andrey Melnikov, and Alexey Kazakov, are
Russian nationals who were born in 1981, 1988, 1966, and 1978 respectively and live in Moscow.
The applicants are all employed by Russian state-owned broadcaster Rossiya-24. They are
respectively a reporter, sound operator, cameraman and a chief editor.

In March 2016 they were sent to Lithuania to cover the Vilnius Russia Forum, an event co-organised
by the Lithuanian Ministry of Foreign Affairs, which dealt with various issues on Russia and included
Russian opposition activists. Their employer had assigned the applicants the task of covering the
events at the Forum and to interview people taking part in it. They did not have accreditation but
gained access to the Forum’s venues. Lithuanian media subsequently reported that they had caused
incidents and disruption.

The Migration Department issued decisions to expel the applicants and to ban their re-entry for one
year. The decisions cited information from the Lithuanian State Security Department that the men,
representatives of television channel Rossiya-24, could represent a threat to national security. It also
referred to their “attacks” during the Forum, as reported by local media media and recorded by the
police.

The applicants left Lithuania but appealed against the expulsion decisions. They argued that they
had been going about their journalistic work peacefully, seeking to interview and film Forum
participants, but that they had been attacked by some of the organisers and conference attendees.
In particular, they had been prevented from interviewing well-known activist Garry Kasparov.
The applicants’ appeals were rejected by both the Vilnius Regional Administrative Court and, in
March 2017, the Supreme Administrative Court.

The Supreme Administrative Court found in particular that the crew had arrived without
accreditation and had gained access to the Forum venue by deception, which had caused a conflict
with the security guards. In the incident with Mr Kasparov, the applicants had used mobile
telephones rather than professional equipment, showing that their intention had not been to gather
information but to carry out provocative actions.

Furthermore, international reports had shown a strong link between the Russian Government and
Russian State media. The court therefore considered that publicly available information, together
with classified information from the State Security Department to which the courts had been given
full access, gave sufficient grounds to believe that the applicants posed a threat to national security.
Lastly, the courts at both levels of jurisdiction emphasised that the applicants’ expulsion had not
been ordered because of the dissemination of any ideas but because of their provocative actions.
They also held that the measures had not prevented the applicants from receiving or imparting any
information, and that, in any event, freedom of expression was not an unlimited right and could be
restricted to protect other important interests.

THE DECISION OF THE COURT…

Article 6 § 1

The Court declared the complaint made under this provision as inadmissible as it had previously
determined that decisions regarding the entry, stay or deportation of aliens did not concern the
determination of an applicant’s civil rights or a criminal charge.

Article 10

The applicants argued that they had been expelled from Lithuania and banned from re-entering
owing to their work as journalists. They stated that they had acted respectfully at the Forum and had
not overstepped the limits of acceptable journalistic activity.

The Court expressed doubts as to whether Article 10 was applicable to the applicants’ case: the
authorities had ordered their expulsion owing to aggressive and provocative actions rather than any
opinions, statements or publications. However, it made no final decision on that issue as it anyway
found the complaint to be inadmissible.

It observed that the measures taken against the applicants had been based on their being a threat to
national security owing to their behaviour at the Forum. In particular, the domestic authorities had
established that the applicants had been given an assignment by their employer to gather
information about prominent Russian political opposition activists participating in the Forum; they
had not obtained or attempted to obtain accreditation, but had gained access to the event by deception and had provoked confrontations with security guards and participants. Despite being warned by the police, they had on the following day attempted to film the participants on a mobile
telephone, and there was information that they had likely planned to cause another confrontation
on the last day of the Forum.

The Court reiterated that domestic authorities were entitled to define their own national interests
but when examining cases of interference with the right to freedom of expression the Court took
account of the fairness of the proceedings involved.

It noted that evidence in the applicants’ case had included classified information from the security
services, however, the domestic courts had had full access to that information, which furthermore
had not been decisive as it had been corroborated by publicly available material. The Court was
satisfied that the courts had not relied to a decisive extent on classified information and that the
applicants had been able to challenge the factual grounds for the decisions against them.

There was nothing in the case file to suggest that the courts had erred in their assessment or had
applied the law in an arbitrary fashion, thus the Court saw no grounds to disagree with their
conclusion that the expulsion and entry ban had been necessary in the interests of national security.
The authorities had also acted in a proportionate way: the applicants had not been prohibited from
making statements or disseminating statements about the Forum, rather they had been expelled
and banned from re-entry owing to aggressive and provocative actions. The courts had also
addressed the question of proportionality and had weighed up the interests at stake.

Lastly, the Court reiterated that the protection which Article 10 gave to journalists was subject to the
proviso that they acted in good faith in order to provide accurate and reliable information in
accordance with the tenets of responsible journalism. That was not confined to content, but also
concerned a journalist’s conduct. In this case, the Court was unable to accept that the applicants’
conduct had been compatible with the concept of responsible journalism.

The Court concluded that the domestic authorities had demonstrated that the measures against the
applicants had been necessary in the interests of national security and had been proportionate to
the legitimate aim pursued. The complaint was therefore manifestly ill-founded and had to be
rejected as inadmissible.

Article 4 of Protocol No. 4

The Court noted that under its case-law the meaning of this provision of the Convention was to be
understood as any measure compelling aliens as a group to leave a country, except where such a
measure was taken on the basis of a reasonable and objective examination of each individual’s case.
It found that although the orders against the applicants had essentially used the same wording, that
did not mean that their individual situations had not been examined. Indeed, the applicants had
arrived as a group, had acted together with a common purpose and their actions had been
coordinated.

The applicants had also been given the possibility to submit arguments against the decisions, which
had been addressed by the authorities in sufficient detail. The Court found no reason to disagree
with the domestic findings. This case could therefore not be compared with those which had
concerned expulsions of large groups of aliens without any kind of examination of each applicant’s
individual situation. This complaint was also manifestly ill-founded and inadmissible.

Other Articles

The Court could not find any appearance of a violation in the applicants’ complaints under Article 13,
Article 14 or Article 18 and rejected them as manifestly ill-founded.


ECHRCaseLaw

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