Legal summary
November 2023
Laurijsen and Others v. the Netherlands - 56896/17, 56910/17, 56914/17 et al.
Judgment 21.11.2023 [Section III]
Article 11
Article 11-1
Freedom of peaceful assembly
Applicants’ arrest and conviction for participating in a protest against the preannounced eviction of a squatted building: violation
Facts – In July 2011 the applicants participated in a gathering of about 150 persons against the preannounced eviction of a squatted building in central Amsterdam. They were arrested for blockading the road in front of and near the squat and charged with participating in an unlawful gathering or otherwise disturbing public order and failure to comply with a police order to disperse, under the general municipal by-law. The Regional Court acquitted the applicants of the first offence and discharged them from prosecution for the second one as it considered that the above law did not apply because the gathering – which from the outset had not been a threat of disorder – had been a demonstration falling within the scope of the Public Assemblies Act. The Court of Appeal, however, found that this had not been the case as the protest had not been peaceful because the organisers and participants had intended to confront the police and to physically prevent the eviction. It sentenced each applicant to two fines of 50 euros. That ruling was upheld on appeal by the Supreme Court which added that the gathering did not fall within the protective scope of Article 11 of the Convention since the organisers and participants had violent intentions.
Law – Article 11:
(a) Applicability and the existence of an interference – The Court was prepared to agree with the Government that impeding the squat’s scheduled eviction had been the foreseeable result of intentional action by the organisers and participants, including the applicants. However, and while recognising that protests which foreseeably or intentionally impeded the activities of other private actors or public bodies were not at the core of the right to peaceful assembly in Article 11, such obstructive or disruptive conduct might still be protected by that provision.
There was no reason in the present case to depart from those precedents. Even if the purpose of the gathering had gone beyond conveying disapproval of the eviction of the squat and the participants had also sought to prevent the lawful eviction of the squat (potentially amounting to “a form of coercion”), that had not, of itself, removed the applicants’ participation in it from the scope of protection of the right to freedom of peaceful assembly under Article 11. Such state of affairs might have implications for any assessment of “necessity” to be carried out under 11 § 2. The question of whether a gathering fell within the autonomous concept of “peaceful assembly” in 11 § 2 and the scope of protection afforded by that provision was independent of whether that gathering had been conducted in accordance with a procedure provided for by the domestic law, such as a duty of prior notification.
Furthermore, no violent intentions or behaviour could be inferred, from the calls posted online or the slogans chanted which, on the face of it and given the context, had to be understood as expressions of dissatisfaction and protest rather than deliberate and unambiguous calls for violence; from the fact that several participants had brought air mattresses or wore balaclavas or other disguises; or from any of the remaining factors adduced by the Government. The Court had recognised in several cases that Article 11 offered protection to ostensibly peaceful protesters who had taken part in assemblies which had been tarnished by violence on the part of other protesters. The applicants had not been amongst the protesters who had been arrested and prosecuted on suspicion of publicly committing concerted acts of violence against persons or property. Individuals were not to be held responsible for the acts of violence by other participants. Since it did not appear from the materials in the case file that the applicants – who must be presumed to have had peaceful intentions in the absence of sufficient and convincing evidence to the contrary – had personally set off smoke bombs, threw objects or kicked out in the direction of the police, or otherwise resorted or incited to violence, the Court found that the conduct during the gathering for which they had been held responsible had not been of such a nature and degree as to remove their participation in it from the protective scope of Article 11.
In view of the above, the applicants were entitled to invoke the guarantees of Article 11, which was therefore applicable ratione materiae in the present case, and that their arrest, prosecution and conviction had amounted to an interference with their right to freedom of peaceful assembly.
(b) Whether the interference was prescribed by law and pursued a legitimate aim – The Court accepted that the interference might be regarded as having pursued the “prevention of disorder or crime” and the “protection of the rights and freedoms of others”. However, it dispensed with ruling on the issue of lawfulness which the parties disagreed on, because, in any event, the interference could not be said to have been “necessary in a democratic society”.
(c) Whether the interference was necessary in a democratic society – The Supreme Court had found that the appellate court had not erred in law and that its ruling that the demonstration had not been within the meaning of the Public Assemblies Act in view of the aim of the gathering had not been incomprehensible, adopting the position that Article 11 had been inapplicable as well. However, it had not examined whether the applicants’ role in the gathering had been in fact “peaceful” within the autonomous meaning given to that concept in the Court’s case-law. By reaching such a conclusion and not exercising the balancing test required under Article 11 § 2, that court had failed to give relevant and sufficient reasons for the interference with the applicants’ right to freedom of assembly, and thus to convincingly establish the necessity for such restrictions, which must be interpreted narrowly. Accordingly, the requirements under Article 11 had not been met because the analysis of its applicability– and, consequently, the assessment of the justification of the interference – had not been carried out at the domestic level in a manner consistent with the Convention and the Court’s case-law.
Conclusion: violation (unanimously).
Article 41: award made to each applicant in the sums of EUR 100 in respect of pecuniary damage (covering the fines) and EUR 100 in respect of non-pecuniary damage.
(See also Kudrevičius and others v. Lithuania [GC], 37553/05, 15 October 2015, Legal summary; Mushegh Saghatelyan v. Armenia, 23086/08, 20 September 2018, Legal summary; Tuskia and Others v. Georgia, 14237/07, 11 October 2018, Legal summary; Navalnyy v. Russia [GC], 29580/12 et al., 15 November 2018, Legal summary; Ekrem Can and Others v. Turkey, 10613/10, 8 March 2022, Legal summary; Bumbeș v. Romania, 18079/15, 3 May 2022, Legal summary)
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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