“We must tackle rioters who abuse demonstrations harder,” Minister David van Weel (Justice, VVD) defended the letter he sent to the House of Representatives last week together with Minister Pieter Heerma (Interior Affairs, CDA). In the letter, the ministers explain how the right to demonstrate can possibly be adjusted. Because if it is up to the cabinet, mayors should be able to take action more easily when demonstrations threaten to get out of hand.
In this way, the government is somewhat complying with the majority of the House, especially right-wing parties, on their wish to adjust the right to demonstrate. These parties refer to blockades by Extinction Rebellion (XR), including on the A12. The ministers also refer to these blockages and mention the violent protests in Loosdrecht against the arrival of emergency shelter.
The discussion about the limits of the right to demonstrate and freedom of expression is again on edge in politics in The Hague
The discussion about the limits of the right to demonstrate and freedom of expression is once again on edge in politics in The Hague. Not only does the government want to amend the right to demonstrate, the bill against glorifying terrorism also appears to be suddenly back on the table.
Critics wonder whether existing legislation is not already sufficient. “We should not constantly be on the repressive tour when it comes to demonstration and personal freedom,” says Rian de Jong, senior lecturer in Constitutional Law at Radboud University.
Wrong emergency authority
The government wants to investigate whether specific emergency powers for demonstrations should fall under the Public Manifestations Act (Wom). The current emergency powers fall under the Municipal Act. These are powers that mayors have as soon as public order threatens to be so seriously disrupted that intervention is necessary.
“It is not necessary,” says head teacher De Jong. According to her and Joost Sillen, professor of constitutional law at Maastricht University, mayors already have sufficient powers to intervene when demonstrations threaten to get out of hand. However, in practice it can sometimes still be unclear to mayors which powers they can lawfully use.
This also became apparent during an XR demonstration in Amsterdam in 2020. Mayor Femke Halsema decided to move the demonstrators with buses because they blocked an intersection and refused to leave after several warnings. The Council of State ruled last year that this was unlawful, because the mayor invoked the wrong emergency powers.
According to De Jong, the example of Amsterdam shows that it can be useful to arrange emergency powers under the Wom (Public Manifestations Act); it provides more overview. “But making administrative relocation easier, where demonstrators are transported to another place by bus: that will be very difficult,” says De Jong.
According to the senior lecturer in constitutional law, this is because the ECHR (European Convention on Human Rights), on which judges assess legislation, weighs heavily on the right to personal freedom and freedom of demonstration.
Sillen also points to it recent research by the WODC knowledge institute affiliated with the Ministry of Justice on the right to demonstrate, which was carried out on behalf of the cabinet. This shows that 97 percent of all demonstrations pose no risk to public order and safety (period 2015-2022). In the remaining 3 percent, three-quarters of the cases involved one incident.
“Mayors can get by well with the current legislation. But the ministers clearly feel the pressure from the House to adjust the right to demonstrate,” says Sillen.
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Protesters on the roof
Ahmed Marcouch, mayor of Arnhem, calls the existing legislation “very powerful”. He used the emergency order during a Quran burning in March 2024. The mayor then banned a demonstration after an earlier burning got out of hand. Marcouch, he says, often “encounters more practical problems.” For example, he struggles with the capacity of the police, which is already heavily burdened.
Gerhard van den Top, mayor of Hilversum, has had to deal with demonstrators who entered the Mediapark site several times in recent years. For example, a handful of XR demonstrators decided to climb the roof of the NOS building at the Mediapark in Hilversum. Ultimately, a police liaison team had to enter into discussions to negotiate with demonstrators, Van den Top was unable to stop the action.
“In the triangle, which I am part of together with the police and the Public Prosecution Service, I was told that I could not enforce because the right to demonstrate weighs more heavily,” says Van den Top. “It felt like intimidation to journalists, which I find very annoying.”
Van den Top hopes that by amending the legislation, such a situation can be prevented in the future. “We must always guarantee the right to free assembly and demonstration, but sometimes it is used to affect other fundamental rights, such as freedom of the press.”
The mayor would benefit from the demonstrators being able to demonstrate on the Mediapark site, within sight and hearing distance, but at an appropriate distance from the buildings. “If we occasionally examine the legislation, it remains appropriate for the times.”
Glorifying terrorism
Unexpectedly, another topic that is closely related to freedom of expression and the right to demonstrate came to the table last week: the bill against glorifying terrorism. Fidelity reported that the VVD supported coalition parties CDA and D66 in a deal on development aid provided that this bill could be resubmitted.
The proposal was not included in the coalition agreement, because D66 feared that the bill could undermine public debate and freedom of expression.
A draft proposal was already submitted for consultation by Minister David van Weel (Justice, VVD) during the Schoof cabinet. The number of social reactions to the proposal was exceptionally high: more than eleven thousand.
According to critics, including human rights organization The Rights Forum, the bill was formulated too vaguely. In their view, this would create a risk that the legislation will be used to arrest peaceful demonstrators, as has happened in the United Kingdom with the pro-Palestine organization Palestine Action. During a demonstration last April arrested the British police more than two hundred demonstrators who expressed support for the banned organization.
It is therefore not punishable if you say: ‘I support Hamas’, but it is punishable if you say it in such a way that you want to encourage others to also support Hamas’s terrorist acts.
The bill was amended based on the critical responses from the internet consultation. For example, in criminalizing the glorification of terrorist crimes, it was decided to no longer use the word “glorify” but “extensive praise or praise”.
Another proposed criminal provision, namely expressing support for a terrorist organization, stipulates that this is only punishable if you want to convince others to embrace the goal of that organization to commit terrorist crimes. Professor of criminal law Marloes van Noorloos of Leiden University: “It is therefore not punishable if you say: ‘I support Hamas’, but it is punishable if you say it in such a way that you want to encourage others to also support Hamas’s terrorist acts.”
The Council of State is less critical in its advice. The government’s highest advisory body concludes that, on the basis of the European Court of Human Rights (ECtHR), the criminal offenses do not constitute “inadmissible restrictions on freedoms”.
‘Chilling effect’
According to Van Noorloos, the amended bill criminalizing the glorification of terrorism has not removed the risks of excessive restrictions on demonstrations. Expressing support will also become a punishable offense when it concerns organizations that have been designated by the Minister of Foreign Affairs as involved in terrorism. The minister can do this if there are sufficient indications of terrorist involvement, for example with AIVD official messages as substantiation. It is not required that the judge has determined in advance that the organization is terrorist.
Even though not every expression of support is punishable in the new proposal, there is still a danger, according to Van Noorloos, knowing that activism is increasingly being made suspicious and pushed into the terrorism corner. “We already saw it last year with Antifa, when a majority of the House voted in favor of a motion to designate it as terrorist. But also, for example, with parties such as BBB that repeatedly describe Extinction Rebellion as a terrorist organization.”
According to Van Noorloos, the judge will take freedom of expression into account when deciding whether someone’s expressions are punishable, but this is mainly in the preliminary phase, when the judge has not yet ruled. “All kinds of political and social pressure can arise on certain people and organizations.” According to the professor, this allows ‘chilling effect‘ arise: people become discouraged from demonstrating.
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