Are there constitutional barriers on the highway for demonstrators?

No planet B

Extinction Rebellion (XR), an activist group advocating for climate change, blocked the A12 highway for nearly a month in protest against fossil fuel subsidies. On Tuesday, 10 October 2023, the Dutch Parliament supported a motion calling the government to develop scenarios for phasing out fossil fuel subsidies. In response, XR announced a temporary halt to the A12 blockades, providing an opportunity to address several constitutional questions outside the turmoil. For example, were the previous blockades permissible at all? How far reaches the right to protest, and when can it be restricted? Nick Efthymiou, Assistant Professor of Constitutional Law at Erasmus School of Law, and Wouter Scherpenisse, PhD candidate at Erasmus School of Law, share their insights on these issues.

Does blocking a highway fall under the right to demonstrate?

The right to demonstrate is a fundamental right enshrined in Article 9 of the Dutch Constitution and Article 11 of the European Convention on Human Rights (ECHR). This right allows individuals to express their opinions publicly, alone or with others. The content of this expression is not subject to control. The crucial question is whether such highway blockades fall within the scope of these articles. From the parliamentary history and case law, it is evident that it is challenging to have a definitive answer, especially in the case of Article 9 of the Dutch Constitution. To fall within the scope of this fundamental right, the guiding principle is that the demonstrators must convey a common opinion. When certain actions primarily take on the character of coercive measures, where the common expression of opinion is lost sight of - as in the case of blocking highways - it no longer qualifies as a demonstration. In such cases, the manifestation falls outside the scope of the right to demonstrate. A well-known example of this is the case of the ‘Blokkeerfriezen’, who forcibly stopped a group of anti-Black Pete demonstrators on the A7 highway. These Blokkeerfriezen could not successfully claim the right to demonstrate. Efthymiou and Scherpenisse state: “In the case of XR, it seems to be assumed that the demonstrations, despite the coercion involved, possess the characteristic of a common expression of opinion. Therefore, for the broadly formulated constitutional article, there seems to be no reason to believe that a blockade like the one by XR falls outside the right to demonstrate. As for Article 11 of the ECHR, it is much clearer due to the Kudrevicius judgment, which placed highway blockades as part of farmers’ protests within the scope of Article 11 of the ECHR. We can assert that, if peaceful, the blocking of highways falls within the right to demonstrate. The first hurdle has thus been overcome: blocking the A12 falls within the right to demonstrate.”

Can the right to demonstrate be restricted in this case?

The researchers state: “In some discussions, it appears that people conclude that, since the right to demonstrate applies, the presence of the demonstrators on the A12 is always legitimate. However, that is not how our constitutional system works.” While the right to demonstrate is a fundamental right, it can be restricted under certain circumstances. The mayor plays a significant role in this regard. The mayor can impose limitations on demonstrations, such as designating an alternative location for the demonstration to prevent a disruption of public order. Efthymiou and Scherpenisse note: “One obvious condition is designating an alternative location for the demonstration. A location can be designated where XR has the opportunity to convey its message, but without causing unnecessary disruptions to traffic or public order.”

Is there anything XR can do about these restrictions?

If protesters disagree with potential restrictions imposed by the municipality, they can turn to the court: “XR is, of course, free to object to such restrictive decisions by the mayor and ultimately have the court assess whether the restrictions were possibly unjustified. If this judicial route is not chosen, we are naturally discussing a justified restriction.” When protesters do not comply with justified restrictive decisions, they violate the law, regardless of the purpose of the demonstration. This violation can lead to potential criminal prosecution, as has happened before with XR protesters.

Use of the water canon

During previous XR demonstrations, the police have used water cannons. The Foundation Friends of XR sought to ban or limit their deployment through proceedings in court. On Friday, 13 October, the presiding judge decided not to interfere with the mayor's authority. The researchers conclude: “This means that water cannons can continue to be used proportionately during XR demonstrations in the future”.

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