Right to protest

Picture by Guido van Nespen, CC BY 2.0

Right to protest under pressure

The right to demonstrate and the related freedom of expression appear to be under pressure in the Netherlands. The National Ombudsman published a report on this issue in March 2018, concluding that governments rarely consider the right to protest as part of a weighing the right to protest against the interest of public order and security. According to the Ombudsman, the civil right to protest should take precedence. This means that a government should spare no effort to ensure the facilitation and protection of demonstrations so that citizens can voice their opinions – no matter how unpopular. Any other governmental approach would violate the right to protest at its core.

Examples of protests under pressure

In 2016, there have been problematic arrests of 326 Feyenoord soccer fans in Rotterdam, a dozen feminist protesters in Spijkenisse, and 200 anti-Black Pete protesters, to name just a few.

In previous years, we’ve witnessed the arrest of 90 Black Pete protesters in Gouda. There, police were on the lookout for ‘people with negro or left-oriented appearances’. We’ve seen people who disagreed with asylum seekers’ centres in their region receive home visits from the police. Anti-monarchist protesters continue to be arrested. In almost all cases, protesters were retroactively vindicated and received apologies.

Recently, an Amsterdam court exonerated the foreman of the Patriotic Europeans Against the Islamisation of the West (Pegida) after he was detained by police for displaying an image of a swastika thrown in the garbage. The court held that the restrictive provision of the mayor touched upon the content of the thoughts and feelings expressed. As such, the mayor should not have prohibited the display of the image. Once again, the protester was dismissed from prosecution.

What does the PILP do?

Lawyers, scientists and non-government organisations (NGOs) such as Amnesty International and the Dutch section of the International Commission of Jurists (NJCM) are concerned about these developments. In this vein, the PILP works to advise protesters and activists on their right to demonstrate and freedom of expression. We have, inter alia, done research into the right to film the police, and have provided legal advice before, during, and after demonstrations.

The case of Sittard-Geleen

 The PILP conducted legal proceedings on behalf of two activists regarding their right to freedom of expression and demonstration. On November 18, 2016, the mayor of Sittard-Geleen imposed restrictive conditions on a local demonstration. Activists who wanted to protest Sinterklaas were allowed to convey only ‘positive messages’, and thus no statements about racism in connection with the festivities. On the 2016 protest, the police upheld the restriction, and placards stating ‘for a racism-free children’s festivity’ and ‘Black Pete is racism’ were confiscated. On December 28, 2016, a complaint was lodged by the PILP to contest the mayor’s limitations on this demonstration.

The right to protest is a fundamental right, as is the right to proclaim your opinion. The limitations imposed by the mayor relate to the content of the protest, and are therefore contrary to the right to protest and the associated right to freedom of expression as enshrined in Article 10 and 11 of the ECHR. In short, they constitute censorship. On February 21, 2017, the PILP learned that it had won its case on the right to protest. The appeals committee of the municipality of Sittard-Geleen has since announced that they will declare the appeal manifestly well founded. The mayor admitted his mistake at a press conference. No further steps will be taken in this case, however we continue to actively protect the right to protest.

The case of Maastricht

We are involved in a procedure on violations of the freedom of assembly and freedom of expression in the municipality of Maastricht. PILP-NJCM started the legal proceedings on behalf of Amnesty International Maastricht, the ‘Maastricht’ student-team of Amnesty International and Janneke Prins of the International Socialists. In the legal proceedings we were supported by lawyer Alexander IJkelenstam of CMS.

The legal proceedings involve the protests on November 19th en December 10th 2017 against the possible expulsion of an Afghan family. Both protests were restricted by the municipality of Maastricht. We think these restrictions constitute a violation of the freedom of assembly and the corresponding right to freedom of expression as protected by articles 10 and 11 ECHR.

The imposed restrictions:

– A prohibition on statements that may shock or disturb;

– A prohibition on handing out flyers without prior approval;

– An obligation to hire qualified traffic controllers.

The municipality stated, soon after we started our case, that the first restriction was indeed illegitimate. The other restrictions remained intact though and the litigation continued. On September 24th 2019 the district court reached a verdict.

The prohibition on flyering was deemed illegitimate. Handing out flyers during a protest is a way to express an opinion to the public. It is an essential part of the right to protest for that reason. The required approval is illegitimate (and would have resulted in possible censorship).

In addition the court noted that the local regulations on flyering are in violation of the national law and human rights. The local regulations should be adjusted, according to the judge.

The court unfortunately uphold the obligation to hire traffic controllers. Even though the court thinks regulating the traffic is a public task, according to the judge there is no objection to the obligation that the organisers have to hire traffic regulators themselves. The fact that this condition will cost the organisers a few hundred euros doesn’t change that, according to the court.

This part of the verdict is unacceptable from a human rights perspective. The restriction raises a threshold to exercise the right to protest, freedom of assembly and the right to free speech. Regulating traffic is a public task. This responsibility should not be shifted to the civilians who want to exercise their right to freedom of expression and freedom to protest.

This case is now in appeal with the highest administrative court, the Council of State.

A successful intervention by PILP regarding the seizure of political material on a demonstration

At the Climate March on April 29, 2017, the police seized a few hundred political newspapers. The newspaper, ‘The Socialist‘, is a political monthly magazine of the International Socialists, a radical left-wing organisation.

The police seized the newspapers because they were sold and for this a permit was required, based on the Municipal law (Article 2.50, paragraph 3, APV Amsterdam 2008). However, the freedom of expression, Article 7 of the Constitution and Article 10 ECHR also protect written forms of opinion, even if they are sold as a newspaper. The seizure of newspapers thus amounts to censorship and is contrary to the freedom of expression during demonstrations.

PILP was asked to intervene. We contacted the police. By mail and by telephone, we pointed the police at the human rights and the jurisprudence regarding goods that contain an opinion.
The police returned the newspapers to the activists and filed the file with the Public Attorney’s office. The PILP explained the applicable (human) rights to the Public Attorney, who decided not to prosecute the activists.

The police has communicated a statement that, from now on, no political newspapers will be seized.

The case of The Hague

The PILP-NJCM, In collaboration with lawyer Alexander IJkelenstam of the law firm CMS (via Pro Bono Connect), successfully conducted legal proceedings against the mayor of The Hague.

In response to the detention of human rights defenders’ in Morocco in 2017 a protest was planned in the Netherlands. The protest, a symbolic hunger strike, would take place in front of the Moroccan embassy in The Hague. The police, on behalf of the mayor of The Hague, sent an email to the organisers of the protest. They restricted the time, place and form of the protest (not at night, not in front of the embassy and no symbolic hunger strike).

At the request the protest organisers the decision was litigated.

To start a legal procedure about the right to protest and the imposed restrictions, we first had to overcome the juridical difficulty of establishing whether the message sent by the police was a ‘decision’ within the meaning of law. The municipality had declared the email was not a formal decision by the mayor. The protest organisers started a court case about this that went from the municipality, to the district court, and eventually to the administrative high court, the Council of State.

On October 9th 2019 the Council of State decided the protest organisers were right: the email by the police was indeed a decision by the mayor that was open for objection.

And on December 5th 2019 the mayor of The Hague finally also agreed on the content: it was never the intention to impose any restrictions on the protest.

The protest should have never been restricted. We expect one of the practical consequences of this to be that future symbolic hunger strikes in front of the embassy will not be restricted by the mayor anymore.

Updates

On December 5th 2019 the mayor of The Hague ruled in favour of our clients. The protest in front of the Moroccan embassy in The Hague should have never been restricted in time, place or form.

We are involved in a procedure on violations to the right to protest and freedom of expression in the municipality of Maastricht.

On February 21, 2017, the PILP learned that it won its case on the right to protest. The municipality of Sittard-Geleen announced that they would declare the appeal manifestly well founded. The mayor admitted his mistake at a press conference.