In 2016, the national Sinterklaasparade took place in the city of Maassluis, the Netherlands. Members of the activist group ‘Kick Out Black Pete’ (Kick Out Zwarte Piet, KOZP) wanted to protest against the caricature of Black Pete during the parade. On their way to Maassluis, the group was stopped in Rotterdam by the police. On 11 November, the mayor of Rotterdam had apparently issued a protest ban for all protests on 12 November 2016. A spontaneous protest in Rotterdam was also terminated by police force. 

Today’s verdict concerned the protest ban of the mayor on the 11th of November 2016. Following this ban, all (planned) protests were prohibited. KOZP found this measure disproportional and felt that their right to protest was violated. Therefore, KOZP filed an appeal against this decision. On November 12, the mayor of Rotterdam had also issued an emergency order. The appeal committee of the municipality of Rotterdam has previously judged this emergency order invalid. Approximately 200 protesters were arrested because of the emergency order. At the time, mayor Aboutaleb agreed with the advice of the committee. You can find a press release here.

Today, the court concluded that the mayor's decision of 11th of November - imposing an overall protest ban - was a proportional measure. The appeal of KOZP was declared unfounded.

The court's main critique was that the group did not formally notify the municipality in advance of their intention to protest. Although the court acknowledges that the lack of a notification does not provide sufficient grounds for prohibiting a demonstration as such, the lack of notification by the group ultimately contributes to the circumstances justifying the protest ban. An important point was that the court – in line with the argument of KOZP - emphasizes that an extra effort may be expected from the municipality when a peaceful protest (of KOZP) threatens to be disrupted by counter-protesters. 

This is an important finding, as protests by KOZP have often been "taken over" by counter-protesters in the past (a recent example is the roadblock at Dokkum). In this judgment, the court emphasizes once again that in cases like these, the authorities should protect peaceful and legitimate protesters against possible counter-protesters.

In a first response, KOZP states: "We are of course very disappointed in this judgment. Mayors limit the exercise of our constitutional rights more and more and this judgment can support them to further weaken the right of protest. It is already a risky enterprise when you want to protest in the Netherlands, as also confirmed by the National Ombudsperson earlier this year. This judgment does not increase the security of KOZP and other citizens who want to use their right of protest once a year during the national Sinterklaasparade with black petes. On the other hand, KOZP is glad that the court emphasized that peaceful protestors have the right to be protected against counter-protesters. We hope that this concern is taken seriously and that minicipalities will adopt this direction of the court in the future. 

KOZP is currently examining the verdict and cannot say at this stage whether they will file an appeal. A copy of the judgment and the press release of the court can be found on rechtspraak.nl.

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Prakken d'Oliveira, formerly known as Böhler, is a law firm with expertise and experience in asylum and immigration law, European law, administrative law, international criminal law and human rights. Our lawyers provide advice and conduct procedures before the Dutch Immigration and Naturalization Service (IND), the Dutch Review Committee on the Intelligence and Security Services (CTIVD), the District- and Appeals courts, the Administrative Law Division of the Dutch Council of State, the Supreme Court of the Netherlands, the European Court of Human Rights (ECHR), the Court of Justice of the European Union (ECJ), the Human Rights Treaty Bodies of the United Nations (UN), the International Criminal Court (ICC), and other international tribunals.