CONCURRING OPINION OF JUDGE SCHUKKING

1. The main question in the present case was whether the applicants’ actions qualified as “peaceful assembly” within the autonomous meaning of Article 11 of the Convention; in other words, whether the applicants’ actions fell within the scope of protection of that provision.

2. I endorse the conclusion that, for the reasons set out in paragraphs 54 ‑ 59 of the judgment, the applicants were entitled to invoke the guarantees of Article 11 of the Convention, which was thus applicable ratione materiae . I also agree with the conclusion that the interference with that right – their arrest and the penalties imposed – was not justified under the second paragraph of that provision.

That being so, I would like to add the following two considerations.

3. The legal basis used to convict the applicants was section 2.2(1) and (3) of the Amsterdam general municipal by-law (“the APV”) in conjunction with section 6.1 of the APV (see paragraphs 16-17 and 20 of the judgment).

4. The applicants contested the applicability of those provisions of the APV. They argued that in the absence of an order by the Mayor of Amsterdam pursuant to provisions of the Public Assemblies Act to end the demonstration, the police intervention and their subsequent arrest and conviction had lacked a legal basis (see paragraph 41 of the judgment), whereas the Government submitted that even if the gathering had been designated as a demonstration and thus had fallen within the scope of the Public Assemblies Act, there would still have been a legal basis in domestic law for the interference with the applicants’ right to freedom of assembly. They noted that sections 7 and 11 of that Act would have provided a legal basis for the actions undertaken by the authorities in the case at hand, such as ending the assembly and prosecuting those participants who had failed to comply with the order to disperse and to leave the area (see paragraph 45 of the judgment).

5. I note that it follows from the domestic courts’ interpretation of national law (see the rulings summarised in paragraphs 12-13, 16 and 20 of the judgment) that, in the absence of violent intentions or behaviour on the part of the organisers and participants, a demonstration falls within the scope of the Public Assemblies Act.

6. In view of the Court’s findings concerning the applicability of Article 11 of the Convention in the present case (see paragraphs 54-59 of the judgment) and taking into account that section 2.2(4) of the APV specifically excludes from the scope of the APV “demonstrations [and] assemblies ... within the meaning of the Public Assemblies Act” (see paragraph 29 of the judgment), I consider the applicants’ argument as to the absence of a legal basis for the interference to be valid (for a comparable example from domestic case-law, see ECLI:NL:RBROT:2011:BP6099). As regards the Government’s argument that even if the gathering were to be regarded as a demonstration within the meaning of the Public Assemblies Act, sections 7 and 11 of that Act would have provided a legal basis in domestic law for interference with the applicants’ right to freedom of assembly (see above), I merely wish to observe that those provisions of the Public Assemblies Act did not in fact constitute the legal basis for the interference with the applicants’ right, and that the legal basis cannot be “replaced” ex post facto .

7. The right to freedom of assembly is a fundamental right and is regarded as one of the foundations of a democratic society (see paragraph 63 of the judgment). It is not, however, an absolute right. Restrictions of that right for the purposes listed in the second paragraph of Article 11 of the Convention (national security or public safety, the prevention of disorder and crime, the protection of health or morals or the protection of the rights and freedoms of others) may be necessary in particular situations. Contracting States enjoy a certain but not unlimited margin of appreciation in deciding on the necessity of such restrictions. The essential object of Article 11 is to protect the individual against arbitrary interference by public authorities with the exercise of the rights protected (see Kudrevičius and Others v. Lithuania [GC], no. 37553/05, §§ 156-58, 15 October 2015).

8. The proportionality principle demands that a fair balance be struck between the requirements of the aims listed in paragraph 2 of Article 11 (see above) on the one hand, and those of the free expression of opinions by word, gesture or even silence by persons assembled on the streets or in other public places, on the other (ibid., § 144). Incitements to violence or calls for the rejection of democratic principles are not protected by the Convention. In its extensive body of case-law, the Court has identified factors to be taken into account when assessing the proportionality of an interference in relation to the aim pursued (ibid., §§ 146-60, for an overview of the relevant factors).

9. As regards the disruption to ordinary life, including the disruption of traffic, the Court has noted that any demonstration in a public place may cause a certain level of disruption and that this, in itself, does not justify an interference with the right to freedom of assembly; it is important for the public authorities to show a certain “degree of tolerance”. What constitutes an appropriate “degree of tolerance” cannot be defined in abstracto : the Court has observed that the particular circumstances of the case and particularly the extent of the “disruption to ordinary life” are relevant in this context. This being so, the Court has also held that it is important for associations and others organising demonstrations, as actors in the democratic process, to abide by the rules governing that process by complying with the regulations in force. An intentional failure by the organisers to abide by these rules and the structuring of a demonstration, or of part of it – in such a way as to cause disruption to ordinary life and other activities to a degree exceeding that which is inevitable in the circumstances – constitutes conduct which cannot enjoy the same privileged protection under the Convention as political speech or debate on questions of public interest, or the peaceful manifestation of opinions on such matters. On the contrary, the Court has considered that the Contracting States enjoy a wide margin of appreciation in their assessment of the necessity in taking measures to restrict such conduct. Restrictions on freedom of peaceful assembly in public places may serve to protect the rights of others with a view to preventing disorder and maintaining an orderly flow of traffic. Since overcrowding during a public event is fraught with danger, it is not uncommon for State authorities in various countries to impose restrictions on the location, date, time, form or manner of conduct of a planned public gathering (ibid., §§ 155-57, with further case-law references).

10. In the present case, the national authorities, including the judicial authorities, adopted the position that Article 11 of the Convention was inapplicable and stopped their assessment at that point (see paragraph 65 of the judgment). As no “fair balance” test, as required under the second paragraph of that provision, had been carried out at the domestic level, the Court concluded that it could not be said that the interference with the applicants’ rights had been “necessary in a democratic society” (see paragraphs 66-67 of the judgment).

APPENDIX

List of cases:

No.

Application no.

Date of introduction

Applicant

Year of birth

Place of residence

1

56896/17

31 July 2017

Cornelis Jacobus Joseph LAURIJSEN

1955

Amsterdam

2

56910/17

31 July 2017

Wendy SPRINGER

1987

Amsterdam

3

56914/17

31 July 2017

Nicky VAN OOSTRUM

1984

Amsterdam

4

56917/17

24 July 2017

Rosa Annemarie Theadora KOENEN

1988

Den Dolder

5

57307/17

31 July 2017

Anat SEGAL

1985

Amsterdam