Right to protest under pressure

The right to protest is enshrined in various international (human rights) treaties, the Dutch Constitution and other legislation. It follows that the government has a duty to respect, protect and realise the right to protest. But the right to protest and related freedom of expression is under pressure worldwide, including in the Netherlands.

Governments must go to great lengths to facilitate and protect demonstrations, but demonstrations are too often seen primarily as a risk to public order, rather than the exercise of a human right. Governments regularly fall short in guaranteeing this fundamental right. Many organisers and demonstrators face problematic restrictions and obstructive regulations and rules.

We are concerned about this because demonstrations are crucial to the democratic rule of law. History shows that the right to protest is essential in bringing about social change. Think of women’s right to vote, LGBTQ+ rights, et cetera. Moreover, demonstrating is a right, not a favour.

Lawyers, academics and NGOs such as Amnesty International and the Dutch Section for the International Commission of Jurists (NJCM) are also concerned about these developments. In 2018, the Dutch National Ombudsman wrote a critical report and in 2022, Amnesty International Netherlands released a report stating that the right to protest is under pressure and that rules and practice in the Netherlands need to improve.

What does the PILP do?

PILP has been advising protesters and activists on the right to protest and freedom of expression since 2016. Among other things, we have commissioned research on the right to film police officers and we provide legal advice before, during and after demonstrations. We are available to think along with organisers about exercising the right to protest. Contact us at contact@pilpnjcm.nl or call +31 (0)20 525 29 66.

The case of Sittard-Geleen

In 2016, a mayor imposed restrictive conditions on a demonstration in Sittard-Geleen. Activists who wanted to demonstrate there during the entry of Sinterklaas were only allowed to convey positive messages. On the day of the demonstration, 19 November 2016, police decided to enforce and protest signs with texts such as “for a racism-free children’s festival” and “black piet is racism” were taken.

The PILP filed an objection on 28 December 2016 against the restrictive conditions imposed by the mayor. The restrictions related to the content of the protest, and thus violated the right to protest and the right of freedom of expression.

We won the case. The objections committee of the Sittard-Geleen municipality upheld the objection. The mayor admitted his mistake at a press conference.

The case of Maastricht

In 2017, the local Amnesty group in Maastricht, together with a branch of the International Socialists and others, organised two demonstrations against the imminent deportation of an Afghan family. They were subjected to several restrictions by the Maastricht municipality. These included prohibiting the organisers from making offensive statements, flyering during the demonstration, and the restrictions required them to hire their own certified traffic controllers.

The PILP initiated proceedings for a curtailment of the right to protest. We were supported in this case by lawyer Alexander IJkelenstam of CMS.

During the objection phase, the municipality ruled that making shocking or offensive expressions should not be prohibited prior to demonstrations. This condition was removed. As the other contested conditions remained in place, we appealed on behalf of the organisers.

Following this, the court struck down the flyer ban imposed by the municipality. After all, flyering during a demonstration is a way for demonstrators to make their views known to the public. Therefore, it is an essential part of the right to protest.

Although the court assumed that regulating traffic is a government task, there was no objection, according to the court, to obliging organisers to arrange their own certified traffic controllers – potentially up to hundreds of euros. This constitutes a barrier to the exercise of the right to protest. We therefore appealed on this point. The Council of State ruled in favour of our clients that municipalities may not simply require organisers of demonstrations to hire certified traffic controllers themselves.

Intervention surrounding seizure of political material at demonstration

At the Climate March on 29 April 2017, the police decided to confiscate several hundred political newspapers.

The police confiscated the newspapers because they were being sold, thus they would fall under the peddling ban in the APV (article 2.50 paragraph 3 APV Amsterdam 2008). However, freedom of expression, from Article 7 of the Constitution and Article 10 of the ECHR, also protects written forms of opinion. Even if these are sold as newspapers.

PILP was asked to intervene. We contacted the police to make them aware of the human rights and case law regarding goods with opinions on them. The police subsequently returned the newspapers to the activists and submitted the casefile to the public prosecutor. PILP also listed these (human) rights for the public prosecutor.

The public prosecutor then decided not to prosecute the activists. In addition, the police sent a message that no political newspapers would be taken from then on.

The case of The Hague

In response to Morocco’s heavy-handed treatment of human rights defenders in 2017, a demonstration was planned in the Netherlands. This protest was to take the form of a symbolic hunger strike in front of the Moroccan consulate in The Hague.

However, through an email sent by the police on behalf of the mayor, the planned demonstration was banned. The demonstration was restricted by the mayor in both time, place and form. PILP, together with lawyer Alexander IJkelenstam of law firm CMS, challenged this decision on behalf of the organisers.

First, it had to be established that such an email message from the police is a decision within the meaning of the law. On 9 October 2019, the Council of State ruled in favour of our clients: the message sent by the police is a decision within the meaning of the law.

Subsequently, on 5 December 2019, the mayor dealt with the substance of the objection and found in favour of the clients. The demonstration should not have been restricted.

Action Group Code Rood

PILP supported Code Rood in an administrative procedure against the decision of the Chairman of the Haaglanden Safety Region. Due to the COVID-19 pandemic, the chairman had limited the number of participants of a 2020 protest organised by Code Rood.

On 19 May 2020, Code Rood wanted to draw attention, together with as many people as possible, to the need to hold Shell accountable for climate change and human rights violations. Code Rood wanted to take into account the pandemic during the protest, had taken hygiene measures and on its own initiative limited the number of protesters to 100, while there was room on the square for 300 people keeping one-and-a-half metres away. The Chairman of the Haaglanden Safety Region nevertheless allowed only 30 people to demonstrate. According to PILP, this is not proportional and therefore an unauthorised infringement of the right to protest.

The appeal procedure on the restriction imposed was lost. Code Rood’s subsequent appeal was, however, upheld by the court. The court considered that a restriction on the amount of participants for each specific protest must be properly justified. At the time, the Chairman of the Safety Region had failed to provide adequate reasons for the decision. During the appeal proceedings, the Chairman did give sufficient reasons for the decision, which meant that the legal consequences of the decision were upheld.

Code Rood, having followed the advice of PILP-NJCM, decided not to appeal.

The case of Climate coalition Parkstad

When the Climate coalition Parkstad wanted to organise a protest on 14 March 2021, it was banned by the mayor of Heerlen, among other things, from reciting poetry or performing a self-written climate song. However, the mayor is not allowed to interfere with the content or form of a demonstration. PILP therefore filed an objection on behalf of the organisers.

The mayor first stood firm and disagreed with the objection. The ban on performances was partly intended to discourage bypassers from joining the demonstration. However, one of the purposes of a demonstration is precisely to inspire and motivate others. This ban is therefore not in line with the right to protest and not proportionate. Therefore, the organisers, with the support of PILP, have appealed.

We are currently awaiting a date for the appeal hearing.

The case of Foundation Rabbit in Need

Foundation Rabbit in Need stands up against the poor conditions rabbits have to live in in the livestock industry. Therefore, a protest was organised at a rabbit farm in Vijfheerenlanden on 18 December 2021.

Because of the risk of hostile listeners and because of pressure on traffic, the foundation and the demonstrators were not allowed to protest for the desired 90 minutes, but only for 50 minutes. In addition, they were not allowed to use a megaphone. They were also not allowed to come by car themselves, so they had to hire an (expensive) bus.

On 14 January 2022, PILP, on behalf of Foundation Rabbit in Need, objected to the mayor of Vijfheerenlanden’s decision on the regulations and restrictions imposed on the foundation’s demonstration.

The mayor followed the advice of the Vijfheerenlanden Objections Committee and vindicated Rabbit in Need on all points of objection.

The case of Foundation We Promise

We Promise is a foundation fighting racism, discrimination and exclusion in the Netherlands. Among other things, We Promise demonstrates against the statue of J.P. Coen in Hoorn, which, according to the foundation, represents a symbolic veneration of a violent colonial past.

On 25 October 2022, PILP filed an objection against the decision of the mayor of Hoorn on the restrictions imposed on the protest against the statue of J.P Coen organised by We Promise. The mayor imposed twenty-three restrictions on the demonstration, including a ban on amplified sound and a ban on “offensive” expressions.

The objection was discussed by an independent advisory committee. This committee advised the municipality to uphold We Promise on all points. The municipality followed the advice and acknowledged that some restrictions, such as the ban on amplified sound, went too far and should not have been imposed.