Case of Laurijsen and Others v. The Netherlands, (Applications nos. 56896/17, 56910/17, 56914/17, 56917/17 and 57307/17)
A selection of key paragraphs can be found below the judgment.
56. The Court further considers that no violent intentions or behaviour can be inferred from the calls posted online or the slogans chanted. On the face of it and given the context, they should be understood as expressions of dissatisfaction and protest rather than deliberate and unambiguous calls for violence (compare Gül and Others v. Turkey, no. 4870/02, §§ 41-42, 8 June 2010; Christian Democratic People’s Party, cited above, § 27; and Primov and Others, cited above, § 135). Nor can any such intentions or behaviour be inferred in itself from the fact that several participants brought air mattresses or wore balaclavas or other disguises (with respect to the wearing of balaclavas, compare Ibragimova v. Russia, no. 68537/13, § 39, 30 August 2022; see also point 60 of General Comment No. 37 of the Human Rights Committee, cited in paragraph 33 above).
58. The Court notes that the applicants were not amongst the group of protesters who were arrested and prosecuted on suspicion of publicly committing concerted acts of violence against persons or property (see paragraph 9 above). In this connection the Court reiterates that individuals are not to be held responsible for the acts of violence by other participants (see Ezelin v. France, 26 April 1991, § 53, Series A no. 202, and Gün and Others v. Turkey, no. 8029/07, § 83, 18 June 2013 and compare points 86 and 87 of the OSCE/Venice Commission Guidelines on Freedom of Peaceful Assembly, cited in paragraph 32 above). Since it does not appear from the materials in the case file that the applicants – who must be presumed to have had peaceful intentions in the absence of sufficient and convincing evidence to the contrary (compare Karpyuk and Others, §§ 198‑207, and Mushegh Saghatelyan, §§ 230-33, both cited above) – personally set off smoke bombs, threw objects or kicked out in the direction of the police, or otherwise resorted or incited to violence, the Court finds that the conduct during the gathering for which they were held responsible was not of such a nature and degree as to remove their participation in it from the scope of protection of the right to freedom of peaceful assembly under Article 11 of the Convention (see, by contrast, Razvozzhayev v. Russia and Ukraine and Udaltsov v. Russia, nos. 75734/12 and 2 others, § 284, 19 November 2019).
59. In view of the above, the Court finds that the applicants are entitled to invoke the guarantees of Article 11, which is therefore applicable ratione materiae in the present case, and that their arrest, prosecution and conviction amounted to an interference with their right to freedom of peaceful assembly. The Court therefore dismisses the Government’s objection.
66. By reaching such a conclusion and not exercising the balancing test required under Article 11 § 2 of the Convention, the Supreme Court failed to give relevant and sufficient reasons for the interference with the applicants’ right to freedom of assembly, and thus failed to convincingly establish the necessity for such restrictions, which must be interpreted narrowly (see the relevant principles in paragraph 63 above). Given the above considerations, the Court finds that the requirements under Article 11 of the Convention were not met because the analysis of applicability of that provision – and, consequently, the assessment of the justification of the interference – were not carried out at the domestic level in a manner consistent with the Convention and the Court’s case-law (compare Obote v. Russia, no. 58954/09, § 43, 19 November 2019, and Malofeyeva v. Russia, no. 36673/04, § 141, 30 May 2013; see also, mutatis mutandis, L. v. the Netherlands, no. 45582/99, §§ 40-42, ECHR 2004-IV).