Successful case: conditional discontinuation of prosecution inappropriate in cases of civil disobedience

A climate activist who had participated in an action of civil disobedience (the occupation of a fossil fuel facility) received – over 2 years after the act – a letter from the Public Prosecutor, notifying him that the criminal prosecution for his participation would be conditionally discontinued.

According to the Public Prosecutor, the conditional discontinuation entailed that the activist would not be criminally prosecuted on the condition that during a probationary period of two years he “would not be found guilty of any criminal offence or in any other way misbehave”.

After having consulted academics and Tosca Urbanus, a criminal law advocate of Jebbink Soeteman Advocaten, the PILP-NJCM decided to support the climate activist in his complaints procedure against the Public Prosecutor’s decision. You can read the grounds on which we based the submitted complaint to the Office of the Public Prosecution (in Dutch) here.

In essence, our arguments stated that actions of civil disobedience may fall within the scope of the right to demonstration. When the action is perceived to have been excessive, a criminal prosecution may be initiated. However, when the action stays within the limits of what constitutes the right to demonstration, a discontinuation of the prosecution (sepot) is called for. A conditional discontinuation of the prosecution requiring the activist not to ‘misbehave’ for two years may have a chilling effect: the action is branded as ‘wrong’ and even though the activist will not be criminally prosecuted it is still implied that he should refrain from any further demonstrations for two years.

There is a good reason why one of the grounds for discontinuing a criminal prosecution concerns societal, economic or political conflicts with an ideological background (ground for discontinuation nr. 44). Criminal law should be applied cautiously when the right to demonstration and public interest issues are involved.

Furthermore, it is unclear how ‘misbehave’ should be interpreted. Also, there are no safeguards against any inappropriate application of the conditional discontinuation of prosecution. For example, there are no effective legal remedies against such a decision.

After having received our grounds of complaint, the Public Prosecutor decided in our favour and changed the conditional discontinuation to a ‘normal’ discontinuation of the criminal prosecution.

The climate activist is very content with this result: ‘It is a victory for the right to demonstration. Thanks to the specialists from the PILP and other lawyers, we are encouraged to restrict climate change’.

Daun Hwang, project officer of the PILP and human rights legal expert, stated: ‘we are very pleased with this outcome and hope that the Office of the Public Prosecution will no longer employ the scheme of conditional discontinuation regarding actions of civil disobedience. If it does happen, we advise citizens to file a complaint (either by themselves or via a lawyer), for which they can use our grounds (in Dutch).’