In its judgment in Amaghlobeli and Others v. Georgia  ([2021] ECHR 422) the European Court of human Rights rejected complaints by two journalists and the publishing company for which they worked that their rights to freedom of expression under Article 10 of the Convention were breached when the journalists were fined for having entered the customs control zone of a border post.

Journalists Mzia Amaghlobeli and Eter Turadze, of Batumi, Georgia, were, at the time of the events in question, respectively the managing director of the publishing company, Batumelebi, and the editor-in-chief of a weekly newspaper it published.

In 2009 local people told the firm’s Batumi office that Georgian border police were conducting arbitrary customs clearance practices at the checkpoint in Sarpi, on the border with Turkey.

The two journalists decided to investigate and on August 15 crossed the border into Turkey then turned back.

After going through passport control at Sarpi they entered the restricted customs-control zone – where new arrivals were completing customs declarations and duties being levied on imported goods – and interviewed travellers and took photographs.

Customs officials asked them several times to leave the restricted zone, but they refused, referring to the freedom they had as journalists to carry out their job as they saw fit.

They were then each fined 1,000 Georgian laris (GEL) (£210) for disobeying the customs officers’ orders and escorted from the restricted zone.

But neither their recording equipment nor recorded interviews were confiscated, and the following week the Batumelebi newspaper carried an article on the customs procedures.

In early November 2009, the two journalists lodged a court action seeking annulment of the sanction, claiming that it had had no legal basis, that their conduct in the customs-control zone was not disruptive, and that they had merely exercised their profession as journalists.

In early February 2010 Tbilisi City Court dismissed the action as ill-founded, finding that the journalists had disrupted customs procedures and breached the Customs Code by entering the zone without prior permission and refusing to leave when asked to do so, and reiterating that they were fined for those reasons, not for exercising their profession as journalists.

Journalists had to abide by the same rules as the general public, the court said.

That decision was upheld by the Tbilisi Court of Appeal, which said that as the journalists entered the checkpoint from the Turkish side as ordinary travellers, they were subject to the same customs rules as everyone else – they had had no right to enter the restricted customs-control zone without anything to declare and without permission from the customs office, and being journalists did not absolve them from having to abide by the law.

In December 2010 the Supreme Court rejected a further appeal by the two journalists.

The journalists and the company then applied to the European Court of Human Rights. The London-based Media Legal Defence Initiative (MLDI), which was also given permission to intervene in the case, in their support.

The MLDI argued that border areas could be a valuable source of newsworthy stories which could inform the public and contribute to debates of general interest, and gave examples of journalists travelling to such areas to report on stories involving corruption, trafficking, military conflicts and immigration.

It also submitted extensive legal arguments on why newsgathering by journalists should be treated as meriting a high level of protection under Article 10, mostly based on an overview of the Court’s case-law on freedom of expression, but also referring to international legal materials.

The Fifth Section court accepted that there was an interference with the applicants’ right to freedom of expression under Article 10 of the Convention; that it was prescribed by law within the meaning of the second paragraph of Article 10 of the Convention; and that it pursued the legitimate aim of preventing disorder in the State-controlled customs zone ([31] to [34]).

Answering the question of whether the interference was necessary in a democratic society required an assessment of the circumstances of the case against two considerations inherent in Article 10 case-law: the value of the news-gathering activities and the concept of ‘responsible’ journalism.

Gathering information was an essential preparatory step in journalism and a protected part of press freedom, the court said (§ 36), adding:

‘A restriction on a journalist’s research and investigative activities always calls for the closest scrutiny by the Court on account of the great danger inherent in attempts to restrict preparatory journalistic steps… Indeed, obstacles created in order to hinder access to information which is of public interest may discourage those working in the media or related fields from pursuing such matters. As a result, they may no longer be able to play their vital role as “public watchdogs,” and their ability to provide accurate and reliable information may be adversely affected…’

It went on to say ([37]) that the concept of responsible journalism, as a professional activity enjoying the protection of Article 10, was not confined to the contents of information collected and/or disseminated by journalistic means, but also encompassed, amongst other things, the lawfulness of a journalist’s conduct, including his or her public interaction with the authorities when exercising journalistic functions.

‘The fact that a journalist has breached the law in that connection is a most relevant, albeit not decisive, consideration when determining whether he or she has acted responsibly,’ 

The Court emphasised that Article 10(2) did not guarantee wholly unrestricted freedom of expression, even with respect to media coverage of matters of serious public concern, adding:

‘In particular, and notwithstanding the vital role played by the media in a democratic society, journalists cannot, in principle, be released from their duty to obey the ordinary criminal law on the basis that, as journalists, Article 10 affords them a cast-iron defence. In other words, a journalist cannot claim exclusive immunity from criminal liability for the sole reason that, unlike other individuals exercising the right to freedom of expression, the offence in question was committed during the performance of his or her journalistic functions…’

The Georgian courts had conducted a fully-fledged balancing exercise in relation to the applicants’ right to freedom of expression and given solid reasons for their decisions, the Fifth Section said, adding that the adequacy of the domestic judicial review significantly increased Georgia’s margin of appreciation in this case, as it would require strong reasons to substitute its own view for that of the domestic courts.

While it had little doubt that the journalists’ news-gathering activities at the Sarpi checkpoint were capable of meaningfully contributing to public debate on a matter of public interest – the allegedly arbitrary customs clearance practices – on the facts of the case, it was less persuaded that the applicants used their best endeavours to interact with the relevant public authority in good faith and in a responsible manner [38]).

As the domestic courts had indicated, if the journalists wished to hear about the practical experience of travellers and merchants who had recently had dealings with the local customs office they could have waited for and interviewed the passengers at the exit instead of trespassing on to the restricted State-controlled zone ([38]).

The applicants also did not suggest and prove in the domestic courts that authorisation to access the State-controlled zone would have been refused had it been sought.

Alternatively, if they deemed it important to witness the customs clearance procedures incognito, without soliciting prior authorisation, they still remained under a legal obligation to vacate the restricted zone as soon given lawful orders to do so from the officers in charge of the zone.

At no point in the domestic proceedings had the applicants shown that only first-hand and direct knowledge of the customs procedures, based on their personal experience and presence in the restricted zone, could have the value and reliability to the extent necessary for their journalistic activities.

Assuming that the two journalists had no other option but to make, in their capacity as journalists, a choice between the general duty to abide by ordinary administrative law, from which they were obviously not absolved, and their professional duties, and that they made this choice to the detriment of the duties of a law-abiding citizen, then the very least that was expected of them, under the concept of ‘responsible journalism’, was to be aware of and accept the legal consequences of the unlawful conduct, including the risk of being subject to legal sanctions.

‘The Court reiterates that journalists cannot, in principle, be released from their duty to obey the ordinary law solely on the basis that Article 10 affords them protection.’ ([39])

Two other important factors tipped the balance in favour of finding that the interference with the first and second applicants’ rights under Article 10 of the Convention was necessary in a democratic society.

First, the domestic authorities had not objected to the applicants making full use of the interviews recorded during their time in the customs control zone, which allowed them to publish the article on their investigation; second, the nature and severity of the sanction imposed on them could not be considered excessive.

The Georgian courts had examined the question at issue with care and in line with the Court’s case-law, and given adequate reasons to justify their decisions, and the court did not see any strong reason to substitute its own assessment. There was no violation of Article 10.