EHRM, 21-11-2023, nr. 56896/17, nr. 56910/17, nr. 56914/17, nr. 56917/17, nr. 57307/17

On 10 May 2011 the public prosecutor notified the occupants of a building (‘the Schijnheilig squat’) at Passeerdersgracht in Amsterdam that they were suspected of squatting and that they would be evicted on or before 5 July 2011.

On 1 July 2011 the provisional-measures judge (voorzieningenrechter) of the Regional Court (rechtbank) of Amsterdam ruled that the intended eviction was lawful. That same day, a message on a website of Independent Media Centre (www.indymedia.nl) called on sympathisers to gather outside the Schijnheilig squat on 5 July 2011 ‘to make a spectacular statement protesting against an empty city and call for ‘free space’, for places where creativity and not money rules’. It also read: ‘We expect that the Mobile Unit [Mobiele Eenheid; a special operations unit of the police] will arrive at 6 a.m. The protest (manifestatie) will continue until the Mobile Unit come to their senses’. The next day a call for protest in the form of ‘poetry, singing, dancing, screaming, jumping [or] sending an angry letter’ appeared on another website.

On 5 July 2011, at around 6 a.m., some 150 people gathered in front of and around the Schijnheilig squat. Seats and tables had been positioned to block the street. Some participants had air mattresses with them. Loud music was being played from the rooftop of a building opposite the squat, and banners had been placed on various nearby public buildings and bridges with texts such as ‘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). During the gathering the participants danced, played instruments, stood close and talked to each other, and chanted slogans such as ‘Squatting's here to stay’ and ‘You Government puppets’. Most of the participants were recognisable and wore plain clothes. Some of the participants were dressed up in costumes or wedding dresses, and others wore sunglasses, balaclavas or other masks or cloths to cover their faces.

At 6.57 a.m. the Police Commissioner ordered those present in front of the Schijnheilig squat to disperse and leave Passeerdersgracht in the direction of an adjacent street. The participants failed to obey this order. After issuing two additional orders to disperse, the Police Commissioner instructed the Mobile Unit to carry out a charge. Using protective shields and wielding truncheons the Mobile Unit advanced and cleared the area in front of the Schijnheilig squat. Items such as beer bottles and a beer crate were thrown at the police. Several smoke bombs were used and there was a small fire.

At 8.37 a.m. the Police Commissioner informed the participants that they were all under arrest. A total of 138 persons, including the applicants, were arrested on suspicion of participating in an unlawful gathering or otherwise disturbing public order, prohibited and made punishable by the Amsterdam general municipal by-law (Algemene Plaatselijke Verordening; ‘the APV’). They were arraigned before the assistant public prosecutor and released the same afternoon. Six other persons were arrested, placed in police custody and prosecuted on suspicion of publicly committing acts of violence in concert against persons or property (Article 141 of the Criminal Code).

The events on Passeerdersgracht and Prinsengracht were recorded by the police in two videos. These recordings were viewed during the hearing in the appeal proceedings (see paragraphs 15–17 below) and were submitted by the applicants to this Court.

On an unspecified date, the applicants were summonsed to appear before the limited jurisdiction judge (kantonrechter) of the Amsterdam Regional Court on suspicion of participating in an unlawful gathering or otherwise disturbing public order and failing to comply with a police order to disperse (sections 2.2(1) and 2.2(3) of the APV respectively; see paragraph 29 below).

By separate judgments of 14 June 2013 the limited jurisdiction judge found proven that the applicants had failed to comply with police orders to disperse and found not proven that they participated in an unlawful gathering as referred to in the APV. His reasoning included the following:

Accordingly, the judge found that sections 2.2(1) and (3) of the APV had been inapplicable pursuant to section 2.2(4) (see paragraph 29 below). The applicants were acquitted of the offence of participating in an unlawful gathering or otherwise disturbing public order and were discharged from prosecution for the offence of 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 (gerechtshof) of Amsterdam quashed the judgments of the Regional Court.

The Court of Appeal held that as its aim had been to seek confrontation with the Mobile Unit and to (physically) prevent the eviction, the gathering could not be regarded as a demonstration in the sense of the Public Assemblies Act but had fallen within the scope of section 2.2 of the APV, and that public order had been disturbed within the meaning of section 2.2(1):

The Court of Appeal accordingly found it proven that the applicants had participated in an unlawful gathering or otherwise disturbed public order and that they had failed to comply with a police order to disperse, in breach of sections 2.2(1) and (3) of the APV (see paragraph 29 below). It sentenced each applicant to two fines of 50 euros (EUR), each fine to be replaced by one day's detention in the event of non-payment.

The applicants lodged appeals on points of law with the Supreme Court (Hoge Raad), 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. They referred to case-law of the Court (amongst others to Cisse v. France, no. 51346/99, 9 April 2002) and to the OSCE/Venice Commission Guidelines on Freedom of Peaceful Assembly (see paragraph 32 below).

In his advisory opinion the Advocate General to the Supreme Court recommended that the applicants' appeals on points of law be dismissed. With respect to the Court of Appeal's conclusion that the protest had not fallen within the scope of the Public Assemblies Act, the Advocate General considered the following (footnotes omitted):

By separate judgments of 11 April 2017 the Supreme Court dismissed the applicants' appeals on points of law, thereby upholding the judgments of the Amsterdam Court of Appeal. The Supreme Court's reasoning included the following:

The relevant provision of the Constitution (Grondwet) reads as follows:

Article 9

Article 9 of the Constitution does not define the scope of the right to assembly and demonstration. However, at the time of the preparation of the 1983 constitutional amendment, the question was raised to what extent it would be acceptable that forms of expression in the context of (in particular) a demonstration amount to coercion. The Memorandum in Reply (Memorie van Antwoord) to the Bill which amended, inter alia, this provision of the Constitution notes that the notion of a ‘demonstration’ within the meaning of Article 9 of the Constitution does not include ‘actions of which the quality of common expression of opinion has faded into the background and which are in the nature of coercive measures (dwangmaatregelen) against the Government or against third parties, as may be the case with blockades of roads and waterways’ (Parliamentary Documents, Lower House of Parliament 1976/77, 13 872, no. 7, p. 33).

Article 93 of the Constitution provides that the Convention forms part of domestic law. Pursuant to Article 94 of the Constitution, the provisions of the Convention take precedence over domestic statutory rules in the event of a conflict.

Dutch courts are expected, as far as is possible, to interpret and apply domestic law in such a way that the State meets its treaty obligations (‘verdragsconforme uitleg’; see, for example, Supreme Court judgment of 16 November 1990, ECLI:NL:HR:1990:ZC0044).

The Public Assemblies Act (Wet openbare manifestaties), an act laid down by Parliament, regulates the exercise of and restrictions on the freedom of religion (Article 6 of the Constitution) and the right of assembly and demonstration (Article 9 of the Constitution). The power to restrict these rights as conferred on public authorities by or pursuant to the provisions of this Act, may be used only to protect health, in the interest of traffic and to combat or prevent disorder (section 2).

The Mayor may issue instructions which organisers of or participants in an assembly or demonstration must observe (section 6). The Mayor may order the organisers or participants to end the assembly or demonstration forthwith and disperse if, inter alia, one of the interests referred to in section 2 so requires (section 7). The violation of these provisions is punishable by a term of detention not exceeding two months or a second-category fine (section 11).

The Explanatory Memorandum to the Bill which became the Public Assemblies Act (see Parliamentary Documents, Lower House of Parliament 1985/86, 19 427, no. 3, p. 8) includes the following:

The Supreme Court held in a judgment of 17 October 2006 (ECLI:NL:HR:2006:AU6741) that the power under section 7 of the Public Assemblies Act to end a demonstration could not be exercised by a police officer without a specific instruction to that effect given by the Mayor.

The relevant provision of the Amsterdam general municipal by-law (Algemene plaatselijke verordening; ‘the APV’) of 2008, laid down by the local council (gemeenteraad), reads as follows:

Section 2.2 — Unlawful gathering, disturbances, disturbance of public order and gatherings

An explanatory note to section 2.2 of the APV provides:

A breach of section 2.2(1) or section 2.2(3) of the APV is a minor offence (section 154 of the Municipality Act) and punishable by a term of imprisonment not exceeding three months or a second-category fine (section 6.1 of the APV).

The Guidelines on Freedom of Peaceful Assembly (CDL-AD(2019)017rev, 15 July 2020, 3rd edition) prepared by the Office for Democratic Institutions and Human Rights (ODIHR) of the Organization for Security and Co-operation in Europe (OSCE) in consultation with the European Commission for Democracy through Law (‘Venice Commission’) read as follows, in so far as relevant (emphasis in original, references omitted):

Section B. Guiding Principles: Interpretive Notes

General Comment No. 37 on the right of peaceful assembly (Article 21) of the Human Rights Committee (adopted at its 129th session, 29 June-24 July 2020, UN Doc. CCPR/C/GC/37) provides that the use of disguises should not in itself be deemed to signify violent intent (at point 60).

Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.

The applicants complained that because they had no violent intentions, the dispersal of the gathering on 5 July 2011 and their subsequent arrest, deprivation of liberty and criminal conviction had unjustly interfered with their right to freedom of peaceful assembly, guaranteed by Article 11 of the Convention, the relevant part of which reads as follows:

Article 11

Article 41 of the Convention provides:

The legal basis used to convict the applicants was section 2.2(1) and (3) of the Amsterdam general municipal by-law (‘the APV’) in conjunction with section 6.1 of the APV (see paragraphs 16–17 and 20 of the judgment).

The applicants contested the applicability of those provisions of the APV. They argued that in the absence of an order by the Mayor of Amsterdam pursuant to provisions of the Public Assemblies Act to end the demonstration, the police intervention and their subsequent arrest and conviction had lacked a legal basis (see paragraph 41 of the judgment), whereas the Government submitted that even if the gathering had been designated as a demonstration and thus had fallen within the scope of the Public Assemblies Act, there would still have been a legal basis in domestic law for the interference with the applicants' right to freedom of assembly. They noted that sections 7 and 11 of that Act would have provided a legal basis for the actions undertaken by the authorities in the case at hand, such as ending the assembly and prosecuting those participants who had failed to comply with the order to disperse and to leave the area (see paragraph 45 of the judgment).

I note that it follows from the domestic courts' interpretation of national law (see the rulings summarised in paragraphs 12–13, 16 and 20 of the judgment) that, in the absence of violent intentions or behaviour on the part of the organisers and participants, a demonstration falls within the scope of the Public Assemblies Act.

In view of the Court's findings concerning the applicability of Article 11 of the Convention in the present case (see paragraphs 54–59 of the judgment) and taking into account that section 2.2(4) of the APV specifically excludes from the scope of the APV ‘demonstrations [and] assemblies … within the meaning of the Public Assemblies Act’ (see paragraph 29 of the judgment), I consider the applicants' argument as to the absence of a legal basis for the interference to be valid (for a comparable example from domestic case-law, see ECLI:NL:RBROT:2011:BP6099). As regards the Government's argument that even if the gathering were to be regarded as a demonstration within the meaning of the Public Assemblies Act, sections 7 and 11 of that Act would have provided a legal basis in domestic law for interference with the applicants' right to freedom of assembly (see above), I merely wish to observe that those provisions of the Public Assemblies Act did not in fact constitute the legal basis for the interference with the applicants' right, and that the legal basis cannot be ‘replaced’ ex post facto.

The right to freedom of assembly is a fundamental right and is regarded as one of the foundations of a democratic society (see paragraph 63 of the judgment). It is not, however, an absolute right. Restrictions of that right for the purposes listed in the second paragraph of Article 11 of the Convention (national security or public safety, the prevention of disorder and crime, the protection of health or morals or the protection of the rights and freedoms of others) may be necessary in particular situations. Contracting States enjoy a certain but not unlimited margin of appreciation in deciding on the necessity of such restrictions. The essential object of Article 11 is to protect the individual against arbitrary interference by public authorities with the exercise of the rights protected (see Kudrevičius and Others v. Lithuania [GC], no. 37553/05, §§ 156-58, 15 October 2015).

The proportionality principle demands that a fair balance be struck between the requirements of the aims listed in paragraph 2 of Article 11 (see above) on the one hand, and those of the free expression of opinions by word, gesture or even silence by persons assembled on the streets or in other public places, on the other (ibid., § 144). Incitements to violence or calls for the rejection of democratic principles are not protected by the Convention. In its extensive body of case-law, the Court has identified factors to be taken into account when assessing the proportionality of an interference in relation to the aim pursued (ibid., §§ 146-60, for an overview of the relevant factors).

As regards the disruption to ordinary life, including the disruption of traffic, the Court has noted that any demonstration in a public place may cause a certain level of disruption and that this, in itself, does not justify an interference with the right to freedom of assembly; it is important for the public authorities to show a certain ‘degree of tolerance’. What constitutes an appropriate ‘degree of tolerance’ cannot be defined in abstracto: the Court has observed that the particular circumstances of the case and particularly the extent of the ‘disruption to ordinary life’ are relevant in this context. This being so, the Court has also held that it is important for associations and others organising demonstrations, as actors in the democratic process, to abide by the rules governing that process by complying with the regulations in force. An intentional failure by the organisers to abide by these rules and the structuring of a demonstration, or of part of it — in such a way as to cause disruption to ordinary life and other activities to a degree exceeding that which is inevitable in the circumstances — constitutes conduct which cannot enjoy the same privileged protection under the Convention as political speech or debate on questions of public interest, or the peaceful manifestation of opinions on such matters. On the contrary, the Court has considered that the Contracting States enjoy a wide margin of appreciation in their assessment of the necessity in taking measures to restrict such conduct. Restrictions on freedom of peaceful assembly in public places may serve to protect the rights of others with a view to preventing disorder and maintaining an orderly flow of traffic. Since overcrowding during a public event is fraught with danger, it is not uncommon for State authorities in various countries to impose restrictions on the location, date, time, form or manner of conduct of a planned public gathering (ibid., §§ 155-57, with further case-law references).

In the present case, the national authorities, including the judicial authorities, adopted the position that Article 11 of the Convention was inapplicable and stopped their assessment at that point (see paragraph 65 of the judgment). As no ‘fair balance’ test, as required under the second paragraph of that provision, had been carried out at the domestic level, the Court concluded that it could not be said that the interference with the applicants' rights had been ‘necessary in a democratic society’ (see paragraphs 66–67 of the judgment).