Jan van Zanen had tried several times to get in touch with representatives of the movement in the run-up to the demonstration of the Extinction Rebellion climate movement on Saturday. Not because the mayor of The Hague thinks something of the message they proclaim during their demonstrations, he judges announced demonstrations ‘with a blindfold’ over his eyes. It is because the law requires him to facilitate the right to demonstrate.
That conversation came a day before the demonstration. Van Zanen offered to hold the demonstration on the fly-over above the Utrechtsebaan, or as a parade through the city. They didn’t want that. Their “only demand,” he writes in a letter the advice was to “block the Utrechtsebaan at the A12” until government policy is changed.
And so he was forced to deploy a lot of police, who would arrest 768 demonstrators. Van Zanen feared dangerous traffic situations at a road block. Two days before the demonstration, six activists were detained at their homes for questioning. Not because they intended to make use of their constitutional right, but because the Public Prosecution Service suspected them of sedition. Unauthorized blocking of a highway is an offence.
Critics soon started talking about unequal treatment. The Volkskrant figured that since 2020 about a quarter of Extinction Rebellion demonstrators have been arrested at 235 demonstrations, compared to less than 5 percent during 432 farmer protests. And what about the municipality for running competitions agree with road closures?
Unworkable
The difference in treatment between the climate movement and the organization of the running competitions is, writes a spokesperson for the mayor NRC, that the running organizer is “a well-known and approachable organization with which clear agreements can be made”. Extinction Rebellion has no central leadership and was unrelenting about the desired demonstration site. And the movement wanted to demonstrate “indefinitely” on the highway. Unworkable, the municipality found.
Demonstrating is not only a fundamental right, says Professor of Constitutional Law Jurgen Goossens, but also an ‘abrasive right’. Demonstrating comes with “nuisance and risks”. In principle, the inconvenience about this cannot and should not stand in the way of the exercise of a fundamental right. The fact that unauthorized blocking of a highway is a criminal offense does not mean that it is off limits for demonstrations.
In addition to being a fundamental right, demonstrating is also an abrasive right, says Professor Goossens
If climate activists want to protest peacefully on the highway, then such a place can fall “within the scope” of the right to demonstrate, as confirmed by the European Court of Human Rights, Goossens points out. The second step: to see if there is reason to limit the right to demonstrate on the highway. The mayor must then be able to substantiate that the restriction is necessary and proportionate. Such an assessment is ‘very individual’: a new assessment is made for each demonstration, where circumstances change all the time.
And that makes it so difficult to conclude that various groups of protesters (farmers, anti-Zwarte Piet, climate, corona) are treated unequally. “No demonstration is the same,” said Goossens. But doesn’t the appearance of unequal treatment come from somewhere?
Dionne Abdoelhafiezkhan, co-founder of Control Alt Delete, is reminded of a police chief who died in NRC said many officers sympathize with the protesting farmers. “The same sympathy is not there for climate activists, they are diametrically opposed to the farmers.” Her organization is committed to, among other things, police brutality and ethnic profiling. She points out that the climate and farmers’ protests have great similarities. “Both are well organized and disrupt public order. An important difference is that the climate activists protest non-violently, while the farmers do not always do so. In that light, it is bitter that the government is willing to arrest seven hundred people at climate demonstrations, not at the farmers’ protests.”
It is therefore not wise that authorities such as the police say they sympathize with farmers, says Professor Goossens. The same applies to MPs and ministers. So states Minister Dilan Yesilgöz-Zegerius (Justice and Security, VVD) that it’s good that six climate activists have been pre-arrested. She believes that this is about sedition, not about the right to demonstrate.
“Certainly the minister must be very careful about speaking out about individual situations,” says Goossens. Such statements can ensure that “citizens feel pressure in advance to no longer use their right to demonstrate”, the chill effect. And it is impossible to speak of sedition within “a few minutes or days.” It will ultimately be up to the judge, not the minister, to judge that qualification, according to Goossens.
The National Ombudsman signaled in 2018 even though the right to demonstrate is under pressure. Amnesty International came last fall with a similar finding. On Tuesday, a parliamentary majority voted in favor of a debate on this, at the request of the Party for the Animals. Party chairman Christine Teunissen “does not want to sit in the chair of the Public Prosecution Service or the judge”, but she strongly wonders whether you can speak of equal treatment. She finds it “very remarkable” that when Farmers Defense Force announces that “the tractors will determine the street scene again” no action is taken in advance, as happened with Extinction Rebellion. “You can see that as sedition.”