Legal action against restriction of right to protest under anti-corona measures lost

In a case co-initiated by PILP-NJCM, the preliminary relief judge of the Court of The Hague decided today that the mayor of The Hague (as chairman of the security region) may limit demonstrations to a maximum of 30 participants under the currently applicable anti-corona measures

Action group Code Rood has registered a demonstration against Shell for climate justice and human rights. The demonstration will take place on Tuesday May 19th, 2020 in front of the Shell headquarters in The Hague.

The action group has indicated that it will adhere to the anti-corona measures by keeping sufficient distance, arranging and wearing masks, facilitating the possibility of washing hands and disinfecting all protest materials regularly. Code Rood has also announced that it intends to demonstrate with only 100 people, in a square that allows the gathering of 300 people in accordance with the “one-and-a-halfmeter rule”.

The mayor of The Hague decided last week that no more than 30 people are allowed to demonstrate. The municipality bases this decision on the Dutch Public Assemblies Act (WOM), which allows for restrictions to be taken in the context of public health. The municipality links this legal basis for restrictions to the corona emergency ordinance, which states that religious gatherings may only take place with a maximum of 30 people. However, a demonstration is not the same as a religious gathering.

Code Rood does not agree with this limitation of their right to demonstrate. That is why the action group has started a procedure (a request for preliminary injunction) to ensure that they can still demonstrate with the envisioned 100 people. They are assisted in this procedure by lawyer Juanita van Lunen (Van Lunen Advocatuur) and by lawyer Jelle Klaas of PILP-NJCM.

The government may restrict the right to protest, but must be very cautious in doing so and must also provide good reasons for the restrictions. After all, it is a fundamental right and a human right. For a protest, the amount of people present can really matter, and it is up to the protesters themselves to determine the form of their protest and thus their numbers. In the case of the Code Rood demonstration on May 19th, the number of 30 people seems to have been chosen at random by the mayor. The mayor has not (properly) motivated why there cannot be 100 people present.

At the same time in The Hague, it is permitted to walk around in Ikea with hundreds of people at an appropriate distance. This is not a fundamental right, yet it does fall under the same anti-corona measures.

The preliminary relief judge has refused the preliminary injunction request. According to the judge,the restriction has been sufficiently motivated. Also, the judge states that the mayor may take alleged behavior of Code Rood members during previous actions (before the corona measures) into account to the detriment of the group.

Code Rood disagrees with these considerations. Moreover, the judge has insufficiently taken the fundamental rights of the protesters as a starting point in this ruling.

Supported by lawyers from PILP-NJCM and lawyer Van Lunen, Code Rood will henceconsider taking further legal action.

The request for a preliminary injunction

The Court ruling