Plans to limit the right to protest go beyond recommendations
The Dutch government wants to tighten the law on the right to protest on certain points. Laura Hanrath, a PhD Candidate at the Department of Constitutional and Administration Law, finds this ‘interesting’ as 97% of demonstrations here are peaceful and incident-free.
This week, cabinet ministers Pieter Heerma and David van Weel sent a letter to the Tweede Kamer (House of Representatives) containing proposals on the right to protest. Specifically, the government wants to give mayors the power to be able to forcibly move protesters and impose tougher penalties for offences committed during demonstrations.
The plans have given rise to legal questions about the balance between public order and the right to protest: the constitutional protection of peaceful, collective expressions of opinion. We asked PhD candidate Laura Hanrath how far the government can go.
It is said the proposals are in line with recommendations in a recent study by the Research and Documentation Centre of the Dutch Ministry of Justice and Security (WODC). Are they?
‘The WODC report concludes that the current laws on the right to protest provide adequate tools for mayors to facilitate and protect demonstrations. As the right to protest is of fundamental importance within a democratic constitutional state, the researchers advise against introducing far-reaching legal changes. Instead, they recommend focusing on practical solutions to problems in the implementation, such as increasing capacity, clearer information, and better communication.
Interestingly, despite these recommendations, the government still wants to go ahead and amend the legal framework. For example, it wants to introduce a new, more readily deployable power to relocate protesters, whereas the WODC researchers suggested only slightly easing the strict conditions of the current power to impose preventive administrative detention. The government also intends to apply this new power in situations such as football riots, violent New Year’s Eve disturbances, or parties that get out of control. However, these types of disorder do not fall under the right to protest, and existing criminal and administrative powers already apply to these cases.
In addition, on news programme Nieuws van de dag, Justice Minister Van Weel even announced a pilot using bright blue ‘smurf paint’ in water cannons. The dye would be hard to remove and allow disorderly protesters to be identified long afterwards; an intrusive, poorly targeted measure with a stigmatising effect.'
How does this proposal align with European standards on the right to protest? Are there comparable developments in other countries from which the Netherlands can draw lessons?
‘Article 11 of the European Convention on Human Rights (ECHR) safeguards the right to freedom of peaceful assembly, which includes demonstrations. Under this article, the right to protest may only be restricted under strict conditions. Any restriction must have a legal basis and serve a legitimate aim, such as public safety or the protection of the rights of others. Any restriction must furthermore be proportionate i.e. not tougher than necessary and in reasonable relation to the aim pursued.
According to the WODC researchers, if you look at our neighbouring countries, the United Kingdom and France in particular illustrate how things should not be done. The UK, which has a somewhat strained relationship with the ECHR, has recently introduced numerous measures that sit uneasily with the right to protest. These include additional grounds for imposing restrictions or criminal liability, far‑reaching police powers, and tougher punishments.’
Minister Van Weel explicitly mentions motorways and railway lines as unsuitable locations for demonstrations. From a legal perspective, does the government have the right to exclude certain forms of protest in advance?
‘The government cannot categorically exclude specific locations, such as motorways, beforehand. Each demonstration must be assessed individually; blanket restrictions are not permitted. In this context, the European Court of Human Rights attaches great importance to the so‑called ‘sight‑and‑sound’ criterion. This means that protesters, as far as possible, must be able to be seen and heard by those they are demonstrating against. The choice of location is therefore an essential part of the right to protest.
That is not to say that demonstrations should always be allowed on, for instance, motorways. In the interests of road safety, public health or the prevention of disorder, a mayor can impose restrictions in advance or, in the most extreme case, ban the demonstration altogether. However, in all cases it is necessary to assess what could still be possible: perhaps a shorter demonstration at a different location is feasible, or it may simply be necessary to keep a route open for emergency services. In the Netherlands, going against restrictions imposed by a mayor or blocking a motorway are criminal offences. Given the importance of the right to demonstrate, it is up to the criminal courts to determine whether, and to what extent, punishment is necessary and proportionate.’
If these plans eventually become law, what will change for ordinary protesters in the Netherlands?
‘For now, that remains uncertain. At this stage, the proposals are still only intentions and will need to be further developed. After the summer, they will be debated in the Tweede Kamer. For example, it is not yet clear which conditions the government intends to attach to any new power to relocate protesters. It is precisely the answers to such questions that will determine what the changes mean in practice.’