In the Netherlands, activists from Extinction Rebellion (XR) regularly block the motorway near The Hague (the A12), resulting in hundreds of arrests each time. These relatively intrusive protests raise questions relating to the right to protest, also called the right to freedom of peaceful assembly. Is it, for instance, permissible to block the public motorway within the right to protest framework in the Netherlands?
The answer to this question is, in fact, more nuanced than it seems. Classifying a demonstration under the scope of the right to protest does, for example, not rule out that the demonstration can still be restricted, and a protestor’s criminal behaviour does not necessarily mean that a demonstration is no longer entitled to the protection of the right to protest. Moreover, a peaceful demonstration that was initially prohibited to take place at a certain location may not, for that reason, be terminated by the authorities.
Interestingly, these subtle but crucial distinctions enveloping the right to freedom of peaceful assembly are not always clear to local authorities. The mayor of The Hague, in his response to the A12 blockade of 11 March 2023, declares that “blocking the A12 is not part of the right to protest” and that “activists who decide to come to the motorway are stepping outside the framework of the right to protest.”[1] This occurred even though the mayor had earlier notified the climate activists that the demonstration did fall within the scope of the right to protest and had accordingly imposed a location restriction based on the Dutch Public Assemblies Act (‘Wet openbare manifestaties’).
In this blog, I consider the following three questions, setting out the general legal framework[2] – based on both the Dutch Constitution and the European Convention on Human Rights (ECHR) – but also applying this framework to Extinction Rebellion’s blockades of the Dutch motorway:
- What actions fall within the law of protest? Do Extinction Rebellion’s motorway protests fall under this scope?
- When can the right to protest legitimately be restricted? How can Extinction Rebellion’s motorway protests be restricted?
- What happens when criminal offences are committed during a demonstration? Why do so many people get arrested at motorway protests?
(i) What actions fall under the law of protest?
The right to protest is recognised in Article 9 of the Dutch Constitution (‘Grondwet’) – which speaks of the right to ‘demonstrate’ – and in international treaties, such as article 11 of the European Convention on Human Rights (ECHR), in which the broader right to ‘freedom of peaceful assembly’ is laid down. Not all protests are automatically covered by the right to protest; it is an important first step to ascertain whether or not the action is protected by this right.
Both the European Court of Human Rights (ECtHR) and the Dutch courts grant a broad interpretation of the freedom of peaceful assembly and the right to demonstrate: all kinds of actions are included. Although the ECtHR does not exhaustively list the criteria defining an assembly – thereby averting the risk of a restrictive interpretation[3] – under Dutch law, the parliamentary history determines that an action is called a demonstration when (i) one or more persons (ii) publicly (iii) express their opinion.[4] So when you decide to publicly express your opinion against the government’s climate policy together with another person (which can also take place spontaneously), we call it a demonstration.
Moreover, the demonstration has to be peaceful in character (Article 11 ECHR) – hence not violent in character or intention[5] – and the collective expression has to play a central role in the action (Article 9 Dutch Constitution).[6] Demonstrations may annoy or hinder, whether in their form (a certain level of traffic disruption should be tolerated[7]) or content (offensive demonstrations also fall within the scope of the law; they can ‘offend, shock or disturb’[8]). Demonstrations thus require a certain degree of tolerance.
However, when other elements, such as coercion, come to the fore and the expression is no longer the central element of the action, a protest lacks the protection of the right to protest under Dutch law.[9] An example of such an action is the blockade of a Dutch motorway in 2017, in which case the goal of the blockade was to make sure that other activists could not travel to the location of their protest.[10] The court ruled that preventing other people from exercising their fundamental right to peaceful assembly fell outside the scope of the right to protest: the people in question were not so much engaged in proclaiming their own opinions.[11]
When a protest meets the above requirements – one or more persons peacefully expressing their opinions in public – the action falls within the right to freedom of peaceful assembly in the Netherlands. Consequently, in principle, sit-ins, occupations and blockades can also count on the protection of the freedom of assembly.[12] Even peaceful blockades of motorways, such as those of Extinction Rebellion on the A12, can generally be included in this scope – as Dutch case law confirms.[13] Moreover, in the well-known judgment of Kudreviçius and Others v Lithuania, the ECtHR analysed a tractor blockade of three major Lithuanian motorways for more than two days in the light of Article 11 ECHR.[14] In an earlier case, the ECtHR also classified slow driving on several lanes of the motorway with the aim of slowing down traffic under Article 11 ECHR.[15]
However, the fact that a demonstration is protected by the right to freedom of peaceful assembly does not mean that protesters are suddenly allowed to do anything. When an action falls within the scope of this right, it means that a certain legal framework (with several safeguards) applies, which the authorities must adhere to. Yet, the right to protest is not absolute: it can be restricted. I will now discuss the cases in which authorities can pose such restrictions.
(ii) When can the right to protest legitimately be restricted?
A restriction on the right to freedom of peaceful assembly can come in different forms, for instance regarding the time, place, duration or size of a demonstration. In practice, restrictions often encompass that protesters must go to a different location. For example, the measure that anti-abortion/pro-life protesters have to stand on the other side of the street instead of in front of the entrance of an abortion facility. Different kinds of restrictions, for instance, prohibit certain behaviours, such as not being allowed to block intersections or carry certain objects (such as sticks or batons).
Limitation grounds
Such restrictions cannot simply be imposed on demonstrations. Mayors are only allowed to impose restrictions if this is necessary (i) for the protection of public health, (ii) in the interests of traffic, and/or (iii) to prevent or combat disorder. This is described in Article 9 paragraph 2 of the Dutch Constitution and in Article 2 of the Dutch law on assemblies: the Public Assemblies Act (‘Wet openbare manifestaties’). The Public Assemblies Act (PAA) essentially regulates how demonstrations can be governed in practice. Based on Article 5 paragraph 1 PAA, the mayor can impose a restriction measure prior to a demonstration or – in exceptional circumstances – issue a ban. During a demonstration, the mayor is also authorised to issue instructions (article 6 PAA) or terminate the demonstration (article 7 PAA). Article 2 PAA stipulates that these powers can only legitimately be used in the interest of the aforementioned three criteria: health, traffic and disorder.
Notification requirement
Protesters are in principle, allowed to choose the time, place, and manner of conduct of the assembly.[16] They do not need a permit or permission to exercise this right. However, the mayor has to be notified of the demonstration. Usually, this must happen within a certain time period, which differs from one municipality to another. The municipality of The Hague, for example, has issued a notification requirement of 4 days prior to the demonstration.[17] Based on the information in the notification, the mayor then decides whether it is necessary to impose a restriction or (in extreme cases) a prohibition for that demonstration. However, certain action groups, such as Extinction Rebellion, usually choose not to give notice of their protests. As a result, it can be complicated for the municipality to get in touch with the organisers, for instance concerning the coordination of the protest. The mayor cannot prohibit or terminate a demonstration on the sole ground that no notification was given.
Restrictions on motorway protests
Regarding past protests of Extinction Rebellion on the motorway, the mayor of The Hague – even in the absence of prior notifications of the protests – did not allow the blockade of the motorway. Instead, another location and time was designated.[18] To this end, the mayor considered the following:
‘The erection of a blockade on one of the busiest traffic arteries, which also serves as an approach route for (emergency) services, leads to traffic problems, obstruction of (emergency) services, a serious disruption of vital societal interests and an infringement of the rights of others (by preventing them from being able to move). Moreover, it creates a dangerous traffic situation for both activists and road users. (…) The protection of the interests of preventing disorder, traffic and health outweighs the interest in protesting at the desired location. Especially as the right to demonstrate does not legitimise breaking the law and exercising coercion.’[19]
Protesters are obliged to comply with this prior instruction; breaching the restriction would result in a violation of Article 11 PAA, which states that disobeying a restriction measure is punishable. Such a violation does, however, not automatically imply that the demonstration can be terminated by the mayor. Dutch case law determines that in the event that the mayor wants to end a demonstration (Article 7 PAA), a new assessment must be made of whether it is necessary to terminate the protest in the interests of Article 2 PAA.[20] This means that when protesters do decide to peacefully obstruct the motorway, despite having been told beforehand to go to another location, the mayor must again decide whether it is actually necessary to terminate the demonstration and must communicate this clearly to the protesters.
(iii) What about offences committed during a demonstration?
If a protester commits an offence during a demonstration, this does not automatically mean that the protest is no longer granted the protection of the right to freedom of peaceful assembly.[21] Nevertheless, according to Article 9(1) of the Dutch Constitution, participants in demonstrations still have to obey the law, such as the Dutch Criminal Code. The public prosecutor can take criminal action against protesters who commit criminal offences, and the judiciary can impose a sanction for these breaches of the law. For example, most Extinction Rebellion protesters who – despite the location restriction – assembled at the A12 during previous blockades were arrested by the public prosecutor for a violation of section 11 PAA.[22]
Nevertheless, arresting, prosecuting and convicting protesters also amounts to an interference with the right to protest.[23] The punishment must therefore be necessary and proportionate (Article 11 ECHR). Due to the peaceful nature of the A12 motorway blockades, the Public Prosecution Service (‘Openbaar Ministerie’) has not prosecuted XR-protesters in previous cases. The Public Prosecution Service notes the following about this:
‘To the extent that the activists have otherwise behaved peacefully (and by now, previous blockades have shown that this is usually the case), the Public Prosecution Service sees no added value in criminal prosecution. After all, the main purpose of the arrests – namely ending the offence, the blockade – has already been achieved.’[24]
Hence, persons who peacefully participate in a demonstration and do not otherwise display reprehensible behaviour are generally not prosecuted.[25] For protesters who not only take part in the demonstration but also commit other offences, this does not apply.[26] The public prosecutor has, for instance, demanded community service sentences for the XR-activists who incited the commission of the criminal offence of blocking the A12 motorway in November 2022 and January 2023, on the basis of Article 131 and 162 of the Dutch Criminal Code.[27] The District Court has indeed sentenced several activists to carry out such a sentence.[28] The Public Prosecution Service writes that given the ‘danger and coercion’, the blockade cannot be considered within the framework of the right to protest.[29] However, given the (confirmed) peacefulness of these blockades, excluding them from the protection of the right to protest does not seem to be the appropriate course of action. The system of restrictions to the right to protest provides sufficient possibilities to act, also in the form of criminal sanctions. This is reflected in the District Court’s judgments.[30] Moreover, in the Kudreviçius and Others v Lithuania judgment cited above, the ECtHR held that, although the blockade was protected by Article 11 ECHR, a restriction of this right in the form of a criminal sanction was justified – even in the form of suspended imprisonment.[31]
Conclusion
In short, even peaceful motorway blockades, such as those of Extinction Rebellion on the A12, can – in principle – fall within the scope of the right to protest. The fact that a protest is covered by this right does, however, not mean that protesters are suddenly allowed to do ‘anything they want’: they still have to adhere to the law, such as the Dutch Criminal Code. Moreover, the right to protest can be restricted if necessary, in the interest of health, traffic, and/or to prevent or combat disorder. It is important that authorities stay away from curtailing the scope of law, and instead use the limitation system. After all, restrictions on the right to protest provide enough room for intervention, for instance, in case of motorway blockades.
[1] ‘Eerste reactie demonstraties 11 maart 2023’, 11 March 2023, https://denhaag.raadsinformatie.nl/document/12502016/1#search=%22blokkade%2011%20maart%22 .
[2] For a Dutch contribution on the limits of the right to protest, I refer to a previous blog by J.G. Brouwer and B. Roorda: https://openbareorde.nl/de-grenzen-van-het-recht-om-te-demonstreren/.
[3] ECtHR (Grand Chamber) 15 November 2018, appl.no 29580/12 (Navalnyy v Russia), para 98.
[4] A.E. Schilder, Het recht tot vergadering en betoging. Een vergelijkende studie naar het Nederlandse en Westduitse recht, Arnhem: Gouda Quint 1989.
[5] See, for example, Amsterdam Court of Appeal 31 August 2015, ECLI:NL:GHAMS:2015:3651.
[6] See more extensively on this subject (Dutch): N.J.L. Swart and B. Roorda, ‘De reikwijdte van het bijkans heilige demonstratierecht’, NTM-NJCMBull. 2023/1.
[7] ECtHR (Grand Chamber) 15 October 2015, appl.no 37553/03 (Kudrevičius and others v Lithuania), para 155.
[8] ECtHR 7 December 1976, appl.no 5493/72 (Handyside v United Kingdom), para 49; ECtHR 23 October 2008, appl.no 10877/04 (Sergey Kuznetsov v Russia), para 45.
[9] Kamerstukken II 1985/86, 19427, no. 3, pp. 8-9; Amsterdam Court of Appeal 31 August 2015, ECLI:NL:GHAMS:2015:3651, para 4.3.3.-4.4.
[10] District Court Noord-Nederland 9 November 2018, ECLI:NL:RBNNE:2018:4561.
[11] Ibid.
[12] See, for example, ECmHR 10 October 1979, appl.no 8191/78 (Rassemblement Jurassien Uniteì Jurassienne v Switzerland); ECtHR 27 June 2006, appl.no 75569/01 (Cetinkaya v Turkey); ECtHR 5 December 2006, appl.no 74552/01 (Oya Ataman v Turkey); ECmHR 16 July 1980, appl.no 8440/78 (Christians Against Fascism and Racism v United Kingdom); ECtHR 7 June 2012, appl.no 65210/09 (G. tv Germany); ECtHR 29 November 2007, appl.no 0025/02 (Balc ̧ik v Turkey); ECtHR 9 April 2002, appl.no 51346/99 (Cisse v France).
[13] District Court Den Haag 2 August 2023, ECLI:NL:RBDHA:2023:114558 a.o.; District Court Den Haag 23 mei 2023, ECLI:NL:RBDHA:2023:7393; District Court Den Haag 27 January 2023, ECLI:NL:RBDHA:2023:1255.
[14] ECtHR 15 October 2015, appl.no 37553/05 (Kudreviçius and others v Lithuania), para 97-99.
[15] ECtHR 5 March 2009, appl.no 31684/05 (Barraco v France).
[16] ECtHR 27 November 2012, appl. no. 58050/08 (Sáska v Hungary), para. 21.
[17] Article 2:3 of the General Municipal Bye-Law (‘Algemene Plaatselijke Verordening’) of The Hague.
[18] See, for instance: ‘Beperking demonstratie van 27 mei a.s.’, 23 May 2023, https://denhaag.raadsinformatie.nl/document/12782488/1/Bijlage_1_-_Beperking_demonstratie_Extinction_Rebellion_27_mei_2023_Geredigeerd.
[19] Ibid.
[20] District Court Den Haag 6 October 2016, ECLI:NL:RBDHA:2016:11985, AB 2017/25, B. Roorda and J.G. Brouwer, see para 4.4, 3 and 6 of the annotation.
[21] Isolated acts of violence do not automatically render an assembly non-peaceful so as to forfeit the protection of Article 11. An individual also does not cease to enjoy the right to freedom of peaceful assembly as a result of sporadic violence or other punishable acts committed by others in the course of the demonstration if the individual in question remains peaceful in his or her own intentions or behaviour. See ECtHR 26 April 1991, appl.no 11800/85 (Ezelin v. France), para 53; ECtHR 25 January 2016, appl.no 74568/12 (Frumkin v. Russia), para 99. However, if a significant number of protesters behave violently, the demonstration can lose that protection, ECtHR 12 June 2014, appl.no. 17391/06 (Primov and Others v Russia), para. 162.
[22] See ‘Blokkade A12 27 mei 2023’, 30 May 2023, https://denhaag.raadsinformatie.nl/document/12802765/2/RIS315625+Blokkade+A12+27+mei+2023 and ‘Demonstraties 11 maart 2023’, 17 March 2023, https://denhaag.raadsinformatie.nl/document/12523403/3#search=%22blokkade%2011%20maart%22.
[23] See, inter alia, ECtHR 5 December 2006, appl.no. 74552/01 (Oya Ataman v Turkey); ECtHR 26 April 1991, appl.no. 11800/85 (Ezelin v France); ECtHR 1 December 2011, appl. nos. 8080/08, 8577/08 (Schwabe and M.G. v Germany).
[24] Openbaar Ministerie, ‘Actievoerders A12 aangehouden, niet vervolgd’, 27 May 2023, https://www.om.nl/actueel/nieuws/2023/05/27/actievoerders-a12-aangehouden-niet-vervolgd#:~:text=The%20police%20have%20made%20hundreds,arrest%20an%20end%20of%20this%20 afternoon.
[25]Openbaar Ministerie, ‘Waarom de meeste activisten niet worden vervolgd’, 28 May 2023, https://www.om.nl/onderwerpen/demonstraties/nieuws/2023/05/28/waarom-de-meeste-a12-activisten-niet-worden-vervolgd .
[26] Ibid.
[27] Openbaar Ministerie, ‘Taakstraffen geeist voor opruien tot gevaarlijke blokkades’, 19 July 2023, https://www.om.nl/actueel/nieuws/2023/07/19/taakstraffen-geeist-voor-opruien-tot-gevaarlijke-blokkades#:~:text=Het%20Openbaar%20Ministerie%20heeft%20taakstraffen,aldus%20de%20officieren%20van%20justitie.
[28] District Court Den Haag 2 August 2023, ECLI:NL:RBDHA:2023:11458, ECLI:NL:RBDHA:2023:11452, ECLI:NL:RBDHA:2023:11450, ECLI:NL:RBDHA:2023:11459, ECLI:NL:RBDHA:2023:11460 and ECLI:NL:RBDHA:2023:11442.
[29] Openbaar Ministerie, ‘Taakstraffen geeist voor opruien tot gevaarlijke blokkades’, 19 July 2023, https://www.om.nl/actueel/nieuws/2023/07/19/taakstraffen-geeist-voor-opruien-tot-gevaarlijke-blokkades#:~:text=Het%20Openbaar%20Ministerie%20heeft%20taakstraffen,aldus%20de%20officieren%20van%20justitie.
[30] District Court Den Haag 2 August 2023, ECLI:NL:RBDHA:2023:11458, ECLI:NL:RBDHA:2023:11452, ECLI:NL:RBDHA:2023:11450, ECLI:NL:RBDHA:2023:11459, ECLI:NL:RBDHA:2023:11460 and ECLI:NL:RBDHA:2023:11442.
[30] Ibid.[31] ECtHR 15 October 2015, appl.no 37553/05 (Kudreviçius and others v Lithuania), para 174.
