Arrest and conviction of protesters who were demonstrating peacefully for the eviction of squatters. Violation of freedom of assembly
JUDGMENT
Laurijsen and others v. the Netherlands 21.11.2023 (app. no.. 56896/17, 56910/17, 56914/17, 56917/17 and 57307/17)
SUMMARY
The case concerned a protest against the eviction of a squat at Passeerdersgracht in Amsterdam.
The applicants were arrested for blockading the road in front of and near the squat and summonsed
for disturbing public order and failing to comply with a police order to disperse, acts that were
prohibited by the municipal by-law (Algemene Plaatselijke Verordening). The Regional Court partly
acquitted and partly discharged them as it considered that the local regulation did not apply because
the protest fell within the scope of the Public Assemblies Act (Wet openbare manifestaties). The
Court of Appeal and the Supreme Court, however, found that the protest had not been peaceful in
nature because, from the outset, the aim of it had been to confront the police and to physically
prevent the squat from being cleared. Those courts considered that the protest was therefore
excluded from the protective scope of the Public Assemblies Act and the Convention. The applicants
were each fined 100 euros in total.
The Court found that the applicants’ participation in the protest fell under the scope of protection of
the right to freedom of peaceful assembly under Article 11 of the Convention. It further found that
the Supreme Court had not examined whether the applicants’ role in the gathering had in fact been
peaceful within the meaning of that provision and had therefore failed to convincingly establish why
it had been necessary, under Article 11 § 2 of the Convention, to interfere with the applicants’ right
to freedom of assembly.
PROVISION
Article 11
PRINCIPAL FACTS
The applicants are five Dutch nationals, Cornelis Laurijsen, Wendy Springer, Nicky van Oostrum,
Rosa Koenen and Anat Segal, who were born between 1955 and 1988. They live in Amsterdam and
Den Dolder (the Netherlands).
In the early morning of 5 July 2011, in response to calls to protest issued earlier that week on two
websites, around 150 demonstrators gathered around a building, “the Schijnheilig squat”, at
Passeerdersgracht in Amsterdam, whose occupants had been notified that they would be evicted.
The demonstrators blocked off the street with chairs and tables. Loud music was played from a
rooftop opposite. Banners with slogans like “Squatting’s here to stay” and “Van der Laan is going
down” (“Van der Laan gaat eraan”; referring to Mr Eberhard van der Laan, then Mayor of
Amsterdam) were put up on public buildings and bridges nearby. The protesters chatted, danced, played musical instruments, and chanted anti-Government slogans. Most of the participants wore
plain clothing; some were dressed-up in costumes or wedding dresses; others wore sunglasses,
balaclavas, masks or scarves to hide their faces.
One hour into the demonstration, the Police Commissioner ordered the protestors to disperse. As
no-one obeyed, he repeated the order a couple of times, before instructing the Mobile Unit, a
special operations unit of the police, to charge. Using protective shields and wielding truncheons,
the police advanced and cleared the area in front of the squat. Beer bottles and a beer crate were
thrown at the police; several smoke bombs were set off, and there was a small fire.
A total of 138 demonstrators, including the applicants, were then arrested and charged for
participating in an unlawful gathering or otherwise disturbing public order, and failing to comply
with a police order to disperse, all prohibited by the Amsterdam general municipal by-law (Algemene
Plaatselijke Verordening; “the APV”) laid down by the local Council. They were released that
afternoon. Six other protestors were arrested, placed in police custody and prosecuted for publicly
committing acts of violence in concert against persons or property in violation of the Criminal Code.
The applicants were summonsed to appear before the limited jurisdiction judge (kantonrechter) of
the Regional Court of Amsterdam. By separate judgments of 14 June 2013, the judge found that they
had failed to comply with police orders to disperse but did not find that they had participated in an
unlawful gathering as referred to in the APV. He held that the gathering had been more a
demonstration covered by the Public Assemblies Act than an unlawful gathering entailing disorder in
the sense of section 2.2 of the APV as, at the outset, there had been no threat of disorder. The
applicants were acquitted of the offence of participating in an unlawful gathering or otherwise
disturbing public order and were discharged from prosecution for failing to comply with police
orders to disperse.
The Public Prosecution Service appealed against those judgments. By separate judgments of
31 August 2015, the Court of Appeal of Amsterdam quashed the Regional Court’s judgments. It held
that the aim of the protest had been to confront the police and to physically prevent the eviction of
the squat. Therefore, the gathering could not be regarded as a demonstration in the sense of the
Public Assemblies Act but fell within the scope of the APV. It found the applicants guilty of
participating in an unlawful gathering or otherwise disturbing public order and of failing to comply
with a police order to disperse, in breach of the APV. It sentenced each of them to two fines of
50 euros (EUR).
The applicants lodged appeals on points of law with the Supreme Court, submitting, among other
things, that the appellate court had failed to recognise that the protest had been a “peaceful
assembly” within the meaning of Article 11 of the Convention and that it had fallen within the scope
of the Public Assemblies Act. By separate judgments of 11 April 2017, the Supreme Court dismissed
the applicants’ appeals on points of law, noting in particular that the protest had not fallen within
the scope of Article 11 of the Convention.
THE DECISION OF THE COURT…
The Court considered that even if the aim of the demonstration had been to try to prevent the
eviction of the Schijnheilig squat, that did not, of itself, remove the scope of protection of the right
to freedom of peaceful assembly under Article 11 of the Convention. It noted that no violent
intentions or behaviour could be inferred from the calls posted online, the slogans chanted, or the
way some protestors had been dressed. On the face of it, those should have been taken to be
expressions of dissatisfaction and protest rather than deliberate and unambiguous calls for violence.
Moreover, the Court noted that the applicants had not been amongst the group of protesters who
had been arrested and prosecuted for violent behaviour.
In several cases the Court has recognised that Article 11 offers protection to ostensibly peaceful
protesters in demonstrations tarnished by violence on the part of other protesters. Since it did not
appear that the applicants had personally set off smoke bombs, thrown objects, kicked out at the
police, or otherwise resorted to or incited violence, the Court found that their participation in the
protest fell under the scope of protection of the right to freedom of peaceful assembly under
Article 11 of the Convention. Therefore, their arrest, prosecution and conviction had amounted to an
interference with that right.
The Court went on to note that the Supreme Court, as well as the appellate court, had found that
the demonstration was not covered by the Public Assemblies Act. The Supreme Court had adopted
the position that Article 11 of the Convention did not therefore apply and had essentially stopped its
assessment at that point, without examining whether the applicants’ role in the gathering had in fact
been “peaceful” within the meaning of that provision. By reaching such a conclusion and not
exercising the “balancing test” which was required under Article 11 § 2 of the Convention, the
Supreme Court had failed to give relevant and sufficient reasons for the interference with the
applicants’ right to freedom of assembly, and thus had failed to convincingly establish the necessity
for such restrictions.
The Court found therefore that the requirements under Article 11 of the Convention had not been
met because the analysis of applicability of that provision – and, consequently, the assessment of
the justification of the interference – had not been carried out at the national level in a manner
consistent with the Convention and the Court’s case-law. It followed that the interference with the
applicants’ rights could not be said to have been “necessary in a democratic society” and was thus in
breach of Article 11 of the Convention.
Just satisfaction (Article 41)
The Court held that the Netherlands was to pay the applicants 100 euros (EUR) each in respect of
pecuniary damage and EUR 100 each in respect of non-pecuniary damage. In respect of costs and
expenses, the Netherlands was to pay EUR 562 each to Mr Laurijsen (application no. 56896/17),
Ms Springer (application no. 56910/17) and Ms Koenen (application no. 56917/17), EUR 363 to
Ms Van Oostrum (application no. 56914/17), and EUR 419 to Ms Segal (application no. 57307/17).
Separate opinion
Judge Schukking expressed a concurring opinion, which is annexed to the judgment.
