Strasbourg Observers

Peaceful protest turned violent: Will Article 11 ECHR hold out against increased criminalisation?

December 22, 2023

By Dr. Alice Dejean de la Bâtie

Lawmakers in Europe are tightening the grip of Criminal Law on public protests and gatherings, targeting demonstrations turning violent and threatening public order and safety (see below). This increase in repression carries the risk of unnecessary interference with the right to freedom of peaceful assembly enshrined in Article 11 of the European Convention on Human Rights (ECHR or Convention). Consequently, every new ruling from the European Court of Human Rights (ECtHR or Court) on the subject takes on significance. The Court stands as a vital bulwark against the growing domestic tendency to narrow down demonstrators’ freedom in the name of public order, without carefully distinguishing between peaceful and violent protesters. Yet, drawing the line between the two is indispensable to ensure a proper application of Article 11, as was recently emphasised by the ECtHR in Laurijsen and Others v. the Netherlands. Although overall protective of protestors’ rights under Article 11, we shall see that this decision remains strikingly on the sideline when it comes to the conditions of interference as provided for by Article 11-2.


On 5 July 2011, approximately 150 individuals convened outside a building in Amsterdam scheduled for eviction, following online mobilisation to support squatting and social use of public space. This assembly included a road blockade using seats and tables. Attendees, some in regular clothing and others wearing costumes or face-covering items like balaclavas, engaged in dancing, playing instruments, and chanting. An hour in, despite three dispersal orders from the Police Commissioner, the crowd failed to obey. Consequently, the Mobile Unit initiated a charge to clear the area. Among the 138 arrested on suspicion of participating in an unlawful gathering or otherwise disturbing public order were the applicants, later released by the public prosecutor. On 14 June 2013, a District Judge cleared them of these charges, but the Amsterdam Court of Appeal overturned this, convicting them and imposing two 50 euro fines each (ECLI:NL:GHAMS:2015:3648-3652). The applicants lodged appeals on point of law with the Supreme Court, submitting inter alia that the appellate court had failed to recognise that the protest had been a ‘demonstration’ within the meaning of the Wom (Public Assembly Act). By judgment of 11 April 2017, the Supreme Court upheld the decision of the Court of Appeal (ECLI:NL:HR:2017:665, 667-670), which led the defendants to take their case to the ECtHR for a violation of Article 11.


The Strasbourg judges had to determine, on the one hand, if the facts fell within the scope of Article 11-1, and, on the other, if the restrictions imposed by the national authorities satisfied the conditions of Article 11-2, both in terms of the existence of legal prescriptions and the necessity of the restrictions. Hence, the first question asked to the ECtHR was whether the gathering corresponded to the ‘peaceful assembly’ protected by Article 11. In line with previous decisions (Shmorgunov e.a. v. Ukraine, § 491; Gülcü v. Turkey, § 97), the Court stated that the applicability of Article 11 to a gathering relied on three elements: (i) the intentions – peaceful or violent – of the organisers, (ii) the intentions of the participants when joining the assembly and (iii) the infliction of bodily harm on anyone by the participants. In the present case, emphasis was put on the first two criteria, which addressed the complex question of people’s intentions. Amongst other things, it was highlighted by the Dutch authorities that one of the clear purposes of the gathering was to prevent the lawful eviction of the squat, and that some participants had brought air mattresses or wore face-covering disguises. The ECtHR deemed these elements insufficient evidence of the violent intentions of the organisers and participants.

Most importantly, the Dutch authorities invoked the fact that some protestors acted violently towards the police, especially after the charge, throwing objects, setting off smoke bombs and kicking in their direction. On the subject, the Court applied a principle already well-established by previous cases (Ezelin v. France, § 53; Frumkin v. Russia, § 99; Laguna Guzman v. Spain, § 35.): ‘an individual does not cease to enjoy the right to freedom of peaceful assembly as a result of sporadic violence or other punishable acts committed by others in the course of the demonstration if the individual in question remains peaceful in his or her own intentions or behaviour’ (§ 50). Regarding the case at hand, the ECtHR pointed out that there was not enough evidence that the applicants, who had to be presumed to have peaceful intentions, had personally engaged in any violent behaviour. In other words, unless the Dutch authorities could prove that one of them had, for instance, actually thrown an object at the police, kicked in their direction, or set off a smoke bomb, their conduct was not of such nature and degree as to remove their participation from the scope of Article 11.

The second question asked to the Court, once it was established that the applicants fell within the scope of the protection of the right to freedom of peaceful assembly, was whether the restrictions to this right brought by the Dutch government satisfied the conditions of Article 11-2. This paragraph requires that such restrictions be ‘prescribed by law and […] necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others’. Regarding the existence of legal prescriptions, lengthy debates had taken place in front of Dutch courts to determine whether the Public Assembly Act (Wom) was applicable. However, the Strasbourg judges preferred to dispense with ruling on the issue, focusing their verdict on the question of necessity. Although this may seem unimportant, it is argued below that this (non) decision regarding lawfulness is in fact very problematic. By choosing not to get involved in the domestic legal debate, the Court turned a blind eye to the increased criminalisation of public protest and opened the door to further repression.

On the necessity of the interference with Article 11, the ECtHR pointed out that their Dutch counterparts did not exercise the balancing test required under Article 11-2 and therefore failed not only to give relevant and sufficient reasons for the interference but also to convincingly establish the necessity of such restrictions. Rather than examining the actual necessity of the restrictions, the Court deduced the violation of Article 11-2 from the insufficient assessment of the justification of the interference at a domestic level. In line with previous decisions (Obote v. Russia, § 43; Malofeyeva v. Russia, § 141), the Court emphasised the responsibility of national courts to conduct thorough legal reasoning in a manner consistent with the Convention and the ECtHR’s case law.


The Laurijsen decision is one of constancy. The Court reiterates rulings made in previous cases and does not waver from past analysis. In particular, the Strasbourg judges enforce the cardinal principles that peaceful protesters finding themselves in a gathering turning violent remain in the protective scope of Article 11, and that protesters are presumed peaceful until proven otherwise. They also emphasise the importance for domestic courts to convincingly – understand seriously – establish the necessity of any interference with the right to peaceful assembly. However, the lack of analysis of the Dutch legal context in Laurijsen leaves unmentioned the elephant in the (court)room: the development of two autonomous sets of rules growing in divergent directions. On the one hand, Article 11, with its cohort of ECtHR jurisprudence, has never been more protective of demonstrators’ rights. On the other hand, some European domestic legislations are steadily walking down the repressive slope. Far from the integration of European norms in the domestic legal framework provided for by the Dutch Constitution, Laurijsen reveals the reluctance of both domestic and European judges to look beyond their immediate domestic/European legal framework.

Indeed, when analysing the legal proceedings in the Laurijsen case, one cannot but notice that the discussions in front of Dutch courts clearly focused on the definition of a peaceful gathering in Dutch law, whether it be in the context of the Dutch Constitution, of the Public Assembly Act (Wom) or of the Amsterdam general municipality bylaw (APV). In these debates, Article 11 of the Convention is mentioned as an interpretative tool to better determine whether the conduct of the protesters did – or did not – fall within the scope of the Wom and therefore outside the scope of the APV (ECLI:NL:PHR:2017:257, § 50-52). The reason this issue was so vividly discussed is that the police intervention against the protesters was legally grounded on the APV and not on the Wom. If the gathering qualified as a demonstration within the meaning of the Wom, then article 2.2 of the APV did not apply, which meant that only the Mayor of Amsterdam – not the Police Commissioner – had the power to order organisers or participants to end the assembly, and such an order had not been issued during the events of 5 July 2011 (see my analysis here).

The domestic law-centred perspective of the Dutch judges was partly addressed by the ECtHR in the sense that it deduced the violation of Article 11 from the insufficient assessment and justification of the necessity of the interference by domestic courts. In doing so, the Strasbourg judges emphasised the importance for domestic courts to dedicate enough attention to the Convention in their legal reasoning. However, the majority decision of the Court chose not to address the internal legal debate regarding the applicability of the Wom to the gathering. In contrast, the concurring opinion of Judge Schukki is enlightening on this point. She considered that the applicability of Article 11 to the case was sufficient to conclude that the gathering was a demonstration within the meaning of the Wom and therefore fell outside the scope of the APV. According to the Dutch ECtHR judge, this meant that the interference had no legal basis (§ 6).

The ECtHR’s decision not to take part in the (domestic) debate regarding the applicability of the Wom has two important consequences. The first is the legal uncertainty that Dutch citizens are left with. Currently, three distinct definitions of the right to a peaceful protest cohabitate in Dutch law. On top of the ‘demonstration’ of the Wom and the ‘peaceful assembly’ of Article 11 of the Convention, Article 9 of the Dutch Constitution provides for the protection of the right to ‘assembly and demonstration’. This overlapping set of normative definitions gives rise to serious concerns regarding the clarity and coherence of the legal framework, thus challenging its compliance with the principle of legality, as enshrined in Article 7 of the Convention. Furthermore, this situation injects an element of legal unpredictability for individuals who engage peacefully in a protest that may escalate into violence, thereby jeopardising the effective exercise of their fundamental rights.

The second consequence is that the ECtHR shows in Laurijsen its reluctance to actually examine the compatibility of domestic legislation with Article 11. This is problematic in a context where European states are proving keen on passing new laws that threaten the freedom to demonstrate. In recent years, new legislation aimed at controlling protesters has flourished all over Europe. For example, in France, the 2019 ‘anti-casseurs’ [anti-looting] law, passed as a reaction to the Yellow Vests movement, provided for new legal limitations to the right to demonstrate. Although this law was partially censured by the French Constitutional Court for disproportionally infringing on the right to freedom of expression, the French Government is again considering passing a more repressive text on the subject.

In Italy, a 2019 law increased punishment for offences and crimes associated with public assemblies. Moreover, last year, an Italian ‘anti-rave’ decree, which originally criminalised the participation in any gatherings of more than fifty people that could be perceived to be posing a danger to public order, safety and health, was later reformulated to narrow down the scope of criminalised behaviours. In Hungary, a new law on the right to assembly was passed in 2018, restricting the right to protest. In the German state of North Rhine-Westphalia, a 2022 assembly act criminalised some peaceful behaviour by protesters, expanded video surveillance and introduced a ban on gatherings on highways. In Belgium, a 2022 regulation, through a controversial interpretation of the law, allowed mayors to take preventive individual measures against protestors. The Belgian Government’s attempt to pass another piece of legislation on the subject was, however, stopped by the parliamentary opposition in December 2023. In the United Kingdom, the Public Order Act 2023 has introduced new protest-related offences, some of which target non-violent behaviours such as locking-on (when protesters attach themselves to other people, objects, or buildings).


In this rather sombre picture, the situation in the Netherlands may appear as a silver lining on paper, Dutch legislation strongly protects the right to peaceful assembly. However, as shown by the Laurijsen case, public authorities use their power of interpretation to skirt protective texts in order to further control and penalise protesters. The latest decisions of the Dutch Supreme Court  – upholding the convictions of a passenger who refused to sit down in a plane to protest against the deportation of a foreigner, and of an activist who poured a black oil-like liquid over the stairs of a building during a demonstration at a major oil company’s headquarters – align with this concerning trend. This highlights why it is more crucial than ever for the ECtHR to keep an eye on the formal content as well as the practical interpretation of domestic legal frameworks. Indeed, even in countries such as the Netherlands, Switzerland, Spain or the Czech Republic, where there was no formal change in anti-protest legislation recently, reports of the use of police force and mass arrests during public gatherings show that the right to protest is under threat. With the arrival on the socio-political scene of a new generation of activists more determined than ever, the ECtHR must enforce Article 11 to its fullest potential. Protesters deserve more than a safety net ready to catch them after they have already fallen (victim to state violence); they deserve a steady hand to keep their right to free assembly standing.

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