“The Netherlands is taking a risk with measures to crack down on peaceful protesters”
VVD, CDA and D66 want to take a tougher stance on demonstrations and impose stricter limits on the right to protest, according to the new coalition agreement. What does this mean for demonstrations at the UvA? Folia asked criminal law lecturer Klaas Rozemond.
The three parties forming the coalition want to be able to take tougher action against demonstrations that escalate into “large-scale disruption of public order”. This is evident from the coalition agreement that was published last Friday.
To this end, the Public Manifestations Act will have to be revised. Mayors will be given powers of “administrative enforcement or relocation”, giving them more tools to ban demonstrations. Revisions to criminal provisions will also result in criminal offences committed during demonstrations being punished more severely.
This proposal has caused quite a stir. The Constitutional and Administrative Law Working Group of the Netherlands Committee of Jurists for Human Rights (NJCM) calls it a “worrying development” and has sent a letter to the parties calling on them not to unnecessarily restrict the right to demonstrate. Parool reader Jacqueline Kroese calls the revision “an attack on our freedom to demonstrate”.
Unclear measures
Klaas Rozemond, associate professor of criminal law at the University of Amsterdam, is most of all surprised. He contributed to a report by the Scientific Research and Data Centre (WODC) on the right to demonstrate, which was recently published, and concludes that there are already sufficient opportunities to take action during demonstrations. The WODC report also shows that mayors, the police and the public prosecutor’s office do not feel the need to take tougher action against demonstrators.
According to Rozemond, it is still unclear what exactly the measures in the coalition agreement are intended to achieve. Together with the other authors of the report, he has an appointment with the Senate to explain once again how the right to demonstrate works. Rozemond: “The government already has options for taking action. When demonstrations turn into riots, as was the case in May 2024 during the pro-Palestine protests at the Binnengasthuisterrein and on the Roeterseiland campus, criminal offences are committed and the police can therefore already take action.”
In view of the political changes on the world stage, the coalition agreement also addresses the increasing threats to the democratic constitutional state. That is why D66, VVD and CDA want to build a “solid barrier” between the independent judiciary and politics. According to professor of legal philosophy Jonathan Soeharno, this is “really a step in the right direction”. Last autumn, he published his book De mooiweerrechtsstaat (The Fair-Weather Rule of Law), in which he warns of the great vulnerability of the judiciary in the Netherlands.
The coalition is tackling two key issues at once, says Soeharno. The minister will no longer be able to appoint members of the Council for the Judiciary. Nor will he have access to the judiciary’s budgetary controls. Soeharno: “This has a major impact in terms of constitutional law. And in practical terms, because there is currently a relatively heavy emphasis on the financial side of the judiciary. This will bring the Netherlands back to a “normal” separation of powers, as is the case in other Western democracies.
Does this mean we are prepared for American situations, where politics violates the democratic rule of law? Soeharno: “You can never be fully prepared for something like that. Once in power, a malicious political party can change the laws again. But this does buy you time. In the Netherlands, things can go wrong immediately, and you want to prevent that.”
Rozemond explains that the police can also intervene in peaceful demonstrations. When a demonstration takes place on private property or in a building, as is the case at the University of Amsterdam, the demonstrators must take the owner of the building or property into account. If the owner indicates that the demonstrators must leave, the police can also arrest the demonstrators on the grounds of “trespassing”. Rozemond: “This carries a fine or a prison sentence, but criminal judges are now very reluctant to impose these penalties.”
Stricter penalties
Protesters are protected by the right to demonstrate, which means that a judge will weigh the criminal offences less heavily. This may change if D66, VVD and CDA introduce a revision of the law and criminal offences during demonstrations are given greater weight.
According to Rozemond, this does not necessarily mean that protesters will be punished more severely. “It’s a double-edged sword, because amending a law does not mean that judges will apply it. The Dutch parliament can stipulate in law that occupying a building is punishable by five years’ imprisonment, but judges will not simply act on that. This is because it is at odds with the right to demonstrate as laid down in the European Convention on Human Rights.”
“However”, Rozemond argues, “the Netherlands is taking a risk by taking these measures against peaceful demonstrators. If politicians send out a signal to take tougher action against demonstrations, the police and the public prosecutor’s office may well do so. The police and the public prosecutor’s office will then be called to order by the courts, but in the meantime, demonstrators may be wrongfully subjected to criminal proceedings.”
