Politicians and administrators always say that demonstrations take place in a healthy democratic constitutional state. But how can the balance be maintained between the right to demonstrate and tackling people who push the limits of that right? The cabinet already promised in the government program that it would make a “sharper distinction [gaat] between peaceful demonstrations and disruptive actions.”
This Wednesday, the House of Representatives will debate the right to demonstrate, at the request of Christine Teunissen (PvdD). She wants to clarify whether that right is in safe hands with the coalition. According to Minister David van Weel (Justice and Security, VVD), the cabinet is facing a dilemma due to an “increasing number of demonstrations that are getting out of hand”, he wrote this month. in a letter to Parliament. Worrying, says Teunissen: “Society gets an image of demonstrations as threats to safety, instead of something we should be proud of.”
Demonstrations by definition disrupt order, and we must accept that to a certain extent
The number of demonstrations has increased considerably in recent years: from just over two thousand in 2015 to more than six thousand in 2022. ‘incidents’ were reported in 3 percent, it emerged last year. a police analysis. This also shows that the number of incidents per demonstration did not increase, contrary to what Minister Van Weel writes. It is unclear how many incidents involve punishable disturbances of public order.
The blockages of highways and other infrastructure by climate organizations such as Extinction Rebellion (XR) appear to be particularly problematic. It has blocked the Utrechtsebaan of the A12 forty times since the summer of 2022. This caused traffic problems and placed a heavy burden on the police. An occupation of the A10 (Amsterdam) is planned for next Saturday.
Super glue
The coalition seems to “see particular benefit in repressive measures,” says Jan Brouwer, emeritus professor of law and society (University of Groningen). For example, Minister Van Weel appears to be considering making disruptive protest a punishable offense more often. Brouwer says he is looking forward with interest to comparative legal research into the right to demonstrate by the knowledge institute WODC, especially what can be learned from recent developments in the United Kingdom. Various criminal offenses were added to the Public Order Act in 2023, such as transporting super glue and padlocks, demonstrating with facial coverings and blocking infrastructure such as (sea) roads.
“In the Netherlands you often hear that certain behavior during peaceful disruptive protests should be made punishable, but then you ignore the fact that roadblocks can also fall within the right to demonstrate,” says demonstration expert Marjolein Kuijers of Amnesty International.
We see that judges do not impose sentences. They reason that otherwise the right to demonstrate will be compromised
She points out a statement of the European Court of Human Rights, which ruled in a case against Lithuania that a long-term blockade of several highways is also permitted, as long as it is done peacefully: “That does not mean that action against it would not be possible, but it does mean that this is subject to very strict rules.”
XR demonstrators who block the highway are in principle punishable, because the mayor of The Hague consistently does not give permission for the A12 as a demonstration site. Yet most arrested demonstrators are not prosecuted. “In practice we see that judges do not impose penalties,” says professor of constitutional and administrative law Jon Schilder. “Judges reason that otherwise the right to demonstrate will be compromised.”
Political parties from left to right agree that the right to demonstrate is under pressure, but argue about the cause. Left-wing parties mainly criticize the attitude of the authorities. “Demonstrations are used for their own political security agenda,” says Teunissen. It bothers her that the minister remains vague about what he calls ‘disruptive actions’. “We already have legal frameworks for perpetrators of violence,” she says.
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Eerdmans
The rules for demonstrating “are quite clear,” Schilder also notes. Making an even clearer distinction between disorder and peaceful demonstrations will be “extremely difficult,” he thinks. Moreover, the contradiction is incorrect, says Brouwer. “Demonstrations by definition disrupt order, and we have to accept that to a certain extent.”
Right-wing parties see it differently. Some demonstrators are said to be “abusing” their fundamental right, with “great leeway to poison demonstrations and let them get out of hand,” says Joost Eerdmans (JA21). That is why he is opposed to face coverings during demonstrations, which makes the investigation and prosecution of criminal offenses more difficult. He served successfully last year a motion in favor of a national ban on facial coverings during demonstrations.
The number of demonstrations has increased significantly, but the number of incidents has not, a police analysis showed
What Eerdmans wants (“in principle no facial covering, unless explicit permission from the mayor”) has been in practice in Germany since the 1980s, says Schilder. “Then politicians were faced with many violent demonstrations.” According to him, the German ban confirms that it is acceptable under European law.
Yet he finds it “undesirable, in view of certain individual circumstances.” Someone may have legitimate reasons for covering their face, for example out of fear of a dictatorial regime being protested against. That is why Minister Van Weel does not like an “absolute, closed ban”.
Eerdmans is not satisfied with that. He suspects “discord within the cabinet between the hardliners (PVV and VVD) and the precise ones (NSC).”
‘Human right’
The discussion about the right to demonstrate shows that there are “wrong views about peaceful protest,” Kuijers concludes. This is due to a lack of knowledge about the law. “It may chafe,” says Kuijers. “If it doesn’t loosen tongues, demonstrating has no effect.”
With this in mind, PvdD MP Teunissen wants to propose to the cabinet “to view the right to demonstrate as a human right instead of as a security risk.” Otherwise, she fears that “the democratic constitutional state will continue to erode due to parties that, to say the least, handle the right to demonstrate sloppily.”
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